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Genie Out of the Bottle (Tech Trends Feature)
September 1, 2008 By: Kenneth WongRuling in software resale case rubs developers the wrong way.
Editor's note: We invite you to share your thoughts on this issue. To discuss it, please visit the CAD Manager's Perspective on Software Resale (or) Piracy thread of the CAD Managers Discussion Forum at www.cadalyst.com/forums.
In 2005, when Timothy Vernor, owner of Happy Hour Comics, stumbled on a copy of AutoCAD R14 at a garage sale priced at just a few dollars, he quickly snatched it up. He didn't know much about AutoCAD, or CAD, for that matter. But based on his eBay trading experience, he judged he should be able to resell the venerable software for a reasonable profit.
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When his attempts to unload the software met with countermeasures from Autodesk, he filed a lawsuit with the U.S. District Court in Seattle. A little less than a year after Vernor vs. Autodesk entered the docket system, the presiding judge, the Honorable Richard Jones, issued an order. The crux of his 21-page document was this: Vernor can sell or otherwise dispose of the AutoCAD software in his possession as he sees fit.
The outcome of the case has become the talk of the town. It's the focus not only of the CAD community but the legal community and the software industry at large. One of the thorny issues is this question: Can you protect the software developer's intellectual property (IP) without infringing on the consumer's rights?
Vernor vs. Autodesk
On August 1, 2007, Vernor filed his complaint against Autodesk in a simple four-page document. He alleged Autodesk had repeatedly disrupted his trading activities on eBay. "On at least five separate occasions starting in May 2005," he wrote, "Autodesk Inc. has used the digital millennium copyright act to have my items for sale removed from the eBay site." According to Vernor, he experienced temporary suspension of his eBay account lasting approximately 30 days.
Autodesk attorney Andrew MacKey insisted his client had nothing to do with the suspension of Vernor's account. "Perhaps the action with respect to eBay resulted from other auctions you have placed," he suggested in a letter to Vernor.
In Vernor's view, the copy of AutoCAD he was reselling was "a genuine retail version of the software," which he purchased from "the original purchaser." Therefore, he believed the First Sale doctrine allowed him to copy, lend, resell, or give away the copyrighted item lawfully.
MacKey held a different view. In another letter to Vernor, he wrote, "Autodesk software is licensed, not sold." Furthermore, he pointed out the software came with an "Autodesk Software License Agreement (ASLA) that prohibits transfer of the software license."
Eventually, the case caught the attention of the consumer advocacy group Public Citizen. Taking up Vernor's cause, Gregory Beck, a lawyer representing the group, amended Vernor's original complaint. Beck asked for, among other things, "A declaratory judgment that (a) Vernor's resale of authentic, used copies of AutoCAD software is lawful . . . (b) Autodesk's 'Software License Agreement' is unenforceable . . . (c) Autodesk has no right to interfere with Vernor's sale of authentic, used copies of Autodesk software. . . . "
Judge Jones' recent ruling in favor of Vernor marks the conclusion of a chapter in the legal drama, but not necessarily the end of it. Autodesk plans to appeal the decision.
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