Judge rules against Autodesk in eBay software case | Hacker News Reader

Judge rules against Autodesk in eBay software case

computerworlduk.com

71 pointsdreemteem20 comments

The funny thing is that the whole, "We've not really sold it to you, you're infringing our copyright if you share it" argument was fought and lost ages ago by book publishers that didn't like having library lending competing with their sales. The subject was well litigated and there is lots of precedence.

I've always been puzzled that the software industry has gotten away with the same line of argument for so long.

Then there's the fact that damn near every economist will tell you that a vibrant after market increases the value of first time sales. Heck, that's self evident, when you know something keeps a good chuck of it's value, you feel more confident buying it new. But software publishers never let common sense get in the way.

I believe this, but I've never found articles that discuss it. Do you have a few example cites? Thanks!

I remember reading it somewhere, the economist maybe, but google fails me.

... when you know something keeps a good chuck of it's value, you feel more confident buying it new.

How much of that applies to computer software though? It's the whole physical versus intellectual property all over again. A physical property, like a luxury car, will wear in time, whereas the intellectual property, like software, will remain exact. The resale value in software is further diminished every time the publisher releases a newer version.

So how much thought of resale value do you keep in mind when making a software purchase really? It's more of an investment towards producing something else than reselling.

Yes, but the replacement market in software consists of upgrades, not of selling the old and buying something new.

Totally different than in the world of tangible goods.

The only time you'd sell a software license is if you stopped using the package completely. And that does cut in to the manufacturers margins. Hence the suit. Glad they lost.

Huge, huge news - this may be the decision that helps us get first sale doctrine rights for DLC.

Will either be overturned on appeal or they will introduce some clause into the Eula saying you agree not to sell them.

IIRC someone (the same guy?) got away with it before with ACad - but in that case the boxes were unopened so had never been licensed.

There was a similair case with MS in the UK. The receivers for a bankrupt company tried to sell their software licenses as assets of the company but were stopped by MS. There was a big deal about it because it changes how companies could write down software purchases in their accounts.

That's the beauty of EULAs in the US: if there's a clause in there that's unconscionable or illegal, even if you agree, it's not enforceable. We already have a well-established first sale doctrine in the States. I could see - but I wouldn't guarantee - that a court could find it unconscionable that a EULA wrapper that prohibits aftermarket sales is unenforceable given that it wouldn't apply to the same/similar content distributed in another medium.

That clause is unenforceable, but not necessarily the entire contract.

Technically, that depends on the individual judge's ruling, but either way, the relevant result - the ability to re-sell DLC - remains. Which (in my opinion) is a good thing (if we can get there).

True. Most contracts will have a severability clause in the end of the contract which will effectively make each part of the contract stand on it's own. I am not sure if contracts without this clause are assumed severable by law like how copyright is granted after a piece of work is created but you have a stronger case if you actually put a copyright symbol on the work.

Incorrect the contract is not enforcable; individual clauses are - most of them fall under civil law; I doubt it would be found "unconstitutional". But certainly you could challenge it.

It would be nice - but I tend to be more cynical when it comes to BIG-CORP against the little guy.

I think the illegal EULA clauses have been struck down because you can't see them until you have opened the box and agreed to them - which is obviously illegal. As long as Autodesk's new clause that you can't sell on an item was clearly stated in advance then it might be considered as reasonable as you being told by a store that eg. earings are non-returnable for hygiene reasons.

For example the laws in the eu which give you a right to return any item bought online (for any reason) already have exemptions for digital media on the grounds you could copy them and return the originals.

Ironicaly for Autoesk back in the days when they used donges this wouldn't have been a problem - they always claimed that the dongle wasn't replaceable and you should insure it for the cost of the software - creating a precedent that it had value and could be bought and sold.

"Autodesk argued that if the judge decided that people own its software, prices will rise for end users." That's a software economics argument I had never seen. Unfortunate they don't elaborate on the foundations.

I took this to mean that Autodesk anticipated a decline in its own sales if an after market was allowed; and hence would need to raise prices to stay on track for revenue.

Of course, the customers would just buy second hand s/w - which is where the argument breaks down

Good job Detroit never thought of this!

Look at biohacker42's comment. Autodesk theoretically might raise it's prices since there is more value for customer in item that can be sold when it is no longer needed.

hah, how about a service that would sell all your licenses when you are switching a computer off and buying all of them again when turning it on again. companies that work in different timezones could save fortunes.

Just one more thing to push Autodesk's twitch - http://labs.autodesk.com/technologies/trials/ ... something Autodesk has been flirting with for about 10 years now. Before you could rent software from authorized dealers, not it's coming online. Nobody would be happier than Autodesk to have their lineup in SaaS.

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