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Sep 10

No garage sales of software

The Ninth Circuit just ruled that, if a software license has the right clause, software is licensed rather than sold, even when you buy it in a box on physical media. This means you can’t onsell the product because you don’t actually own anything. (Unlike books, where the copyright first sale doctrine protects buyers against getting sued for selling their used book.) This might also mean that it’s illegal for companies like GameStop to run their used computer game selling business.

The case is Vernor v. Autodesk, and it involves Timothy Vernor, who bought four copies of Autodesk AutoCAD at a garage sale and then tried to resell them on eBay. Autodesk threatened to sue Vernor for copyright infringement. Vernor instead filed a suit asking the court to clarify his right to resell the software.

The EFF comments:

But the potential effects of this decision don’t stop there: it risks creating a situation in which violating contracts and end-user license agreements (EULAs) could result in a copyright infringement lawsuit (with the heavy club of statutory damages, attorneys fees and low standards for injunctions) rather than just a simple breach of contract claim.

We understand Mr. Vernor may seek en banc review of this decision, which means the entire court will hear the case and could reverse this dangerous ruling. We hope that the court agrees to review the case and treats it as an opportunity to put consumer rights and expectations ahead of the overreaching demands of software vendors.

  8:10pm  •  Law  •   •  Tweet This  •  Add a comment