When you buy a book from a book store, the publisher loses all rights as to whom (or whether) you sell it in the future. That refers to the “First Sale” doctrine of copyright law — the publisher can only control the first sale of the book. When you buy software, though, the publisher restricts your rights to resell it — generally speaking, they forbid it, claiming that software is only licensed, not owned, and you can find any number of cases of people getting take-down notices on eBay for selling their copy of AutoCAD, etc., there. There is no “First Sale” doctrine established in law, as that was established only for books by the Supreme Court and Congress.
The courts, though, are beginning to ask why there’s a difference between them, besides the software publishers wrapping their software with shrinkwrap agreement saying Thou Shallt Not. And there’s a new case that may be the camel’s nose under the tent flap …
The U.S. District Court in Seattle last week issued a decision denying a motion by Autodesk to dismiss a lawsuit filed by Timothy Vernor. Vernor’s attempts to sell used copies of AutoCad on eBay had been repeatedly interrupted by Autodesk’s DMCA takedown notices. Vernor, represented by Public Citizen and Seattle attorney Michael Withey, had sued to force Autodesk to concede his right to sell legally acquired copies of the software under the First Sale doctrine of copyright law. Autodesk’s motion to dismiss argued that the AutoCad EULA prohibited Vernor from re-selling the software, but Judge Richard A. Jones ruled in Vernor’s favor and the case will proceed.
Good stuff.
Hmm, this is pretty big news. Will be interesting to see how it develops and what precedent it sets.
Very interesting…I can see the publishers point in that nothing stops you from installing software and then selling afterwards. The problem for them is there are examples of similar media with no restictions for resell like music CD’s, movie dvd’s or video games.
They also can install various DRM if the choose…
Well, far be it from me to suggest DRM, but …
Most software requires some sort of online registration. What software publishers are really afraid of is aftermarket sale of used software. While, arguably, if I only upgrade from XYZCad r4 to r5, my old r4 copy is not legit. If I no longer run XYZCad, I should be able to sell my old r4 copy — but XYZCorp realizes that they make no money off of it, and that too many people would find r4 of enough value to impact sales of r5.
It’s like the college textbook trade. Used books only benefit the consumers, not the book publishers.
Heh. Camel’s nose under the tent flap. Heh.
This will be interesting since what Autodesk does sell you a seat license, which is only good for the current revision and the last revision. Which means that you need to buy a new version every other revision or lose you license. So, someone selling old copies of AutoCAD shouldn’t really matter to Autodesk since they would not be able to install it without the Key (anything since r14, since 14 was the first version that you needed to verify your key code online), or if someone sells their license all it means is that they will need to upgrade to a new product, thus they gain a sale.
But folks can still run old copies of AutoCAD, they just can’t install them on a new machine and they have also lost their seat license (and thus all happy Autodesk Discounts when upgrading).
So this case will effect everything involving almost all the non Free and Share ware companies out their since I think they all have EULA’s about resale and such….plus it will have a major effect on every company out there that buys software.
Really, the simple solution would be to set up a license trading system through the company in question if they want to avoid having their cash cow gored.
I’m just thinking ‘out loud’ here, so this may or may not be worth anything.
If you buy a physical object or a bunch of physical stuff, you’re buying a thing that you can consume or resell if you wish. That’s clearly the common-law way of dealing with a commercial transaction that’s not a service. Commercial transactions that are services normally involve a person performing that service in exchange for compensation.
It is economically beneficial to suppliers to treat software like a service. Buyers, on the other hand are economically best off if they can treat software like a physical object. But in either case, the other party feels they have been disadvantaged.
Historically, this wasn’t a problem (e.g. with books or LP records) because it was cheaper for people to buy a new copy from the publisher than to reproduce it themselves. This meant that we could treat the sale as we had treated the sale of physical objects without great economic harm to either publishers or consumers. Once technology made it cheaper for consumers to reproduce software or music themselves than to buy another copy from the publisher, this was no longer true. The publishers tried to use political control of the technology that allowed inexpensive reproduction to keep the old economic model working, but that involved restrictions on the use of things that clearly are just physical objects, and so consumers didn’t like that. The battle still rages in the form of DRM.
Perhaps our problem with software (and music too) is that we’re trying to apply models of commerce that don’t really work with intellectual property. Music and software are not consumed in the sense that food or fuel or a number of other things are consumed. They also don’t involve a person performing a service in exchange for compensation in the sense that a plumber or an electrician does.
So it seems that we need to apply some other commercial model, perhaps one that hasn’t been invented yet.
http://www.youtube.com/watch?v=w91-GMc3j7I
Oops. Comment above to the wrong post …
Thought it’s worth noting that the First Sale doctrine evolved out of attempts by book publishers to argue that they would, in fact, suffer great harm if not allowed to restrict the resale of book they had published. Indeed, to this day, some books include EULA-style text indicating they cannot be resold.
But a book can be consumed or reconsumed by a purchaser. It can also be consumed by the original purchaser, than given or sold to another. Or it can be consumed by the original purchaser, loaned to another person for consumption, then returned to the original purchaser for reconsumption. Egads!
I didn’t know about the earlier battle over book resale. I’ll have to look that up. When did that battle occur?
I meant ‘consume’ in the sense that it’s all gone when you’re done. I consume food in this sense, but not a book or music.
It occurred to me that one reason publishing books and music was so lucrative for so long was that they took things that had been services (think of musical performances or hand-copying manuscripts), and turned them into mass-produced objects. The incremental cost of each copy of a printed book or each copy of a pressed record was small. They publishers marked the prices way up, and the authors and musicians became famous and wealthy. But now that consumers can reproduce music and literature fairly cheaply, the publishers authors and musicians want to change from the sale model back to the service model but with a twist: authors and musicians don’t really want to perform their work for each person who buys it (and the buyers don’t want that either since it’s harder to carry a live band in your purse or briefcase than it is to carry an iPod). In some sense, the publishers once wanted to encourage people to think of books and music as physical objects for sale, but now they want people to think of them more like services. It’s the law of unintended consequences!
Per the linked article:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=210&invol=339
I believe the section of the Copyright code related to this is here: http://www.copyright.gov/title17/92chap1.html#109