The legal team representing eBay seller
Timothy S. Vernor in a federal lawsuit against Autodesk has filed an amended complaint. The new complaint restates the case in professional language and adds a petition for declaratory judgments and injunctions regarding the legality of Vernor’s actions. As
AECnews reported in September, Vernor filed the original suit without benefit of an attorney; citizen advocacy group Public Citizen agreed to represent him after his case was
more widely reported, based on our original article.
In an additional development, high-profile Seattle attorney Michael Withey of Seattle is now part of the Vernor legal team. Withey is best known as the attorney to win the first successful personal injury lawsuit filed against former dictator of The Philippines Ferdinand Marcos.
The suit concerns the legality of reselling used copies of Autodesk. Vernor picked up his first used copy of AutoCAD Release 14 at what Public Citizen refers to in the complaint as a “tag sale.” Autodesk claims that the license agreement that ships with the software in the shrink-wrapped box prohibits the purchaser from reselling the software. Public Citizen argues on behalf of Vernor that this contract language is unlawful under the Copyright Act, which guarantees that the owner of a copyrighted product can resell that product without permission.
“The Supreme Court has long recognized that, once a copyright owner has sold a copy of its product, it has no right to control subsequent sales,” says Greg Beck, the Public Citizen attorney who represents Vernor. “Just putting a paper inside the box and calling it a license agreement doesn’t negate that fact. If copyright owners could restrict resale of their products with these so-called agreements, used book and record stores would soon disappear. And if companies could so easily transform a sale into a license, a wide range of statutes that protect purchasers of products could be circumvented with a stroke of a pen.”
“We don't believe that Autodesk can restrict Vernor’s right to resell its products that he legally purchased,” adds Withey in a statement released by Public Citizen.
Vernor’s legal team also contends that Autodesk not only violated copyright law, but it wrongly used the Digital Millennium Copyright Act (DMCA) to repeatedly force eBay to withdraw Vernor’s used software from auction. “The DMCA provides no prior notice or opportunity to respond, and its heightened remedies were meant to fight piracy, not to enforce contracts,” says Beck. “Additionally, even though Autodesk is trying to interpret its license agreement to prohibit all resale of authentic copies of its products, Vernor never signed or agreed to anything.”
The amended complaint asks the court to protect Vernor’s rights to resell AutoCAD software and rule that Autodesk’s license agreement is unenforceable. The lawsuit is pending in the United States District Court for the Western District of Washington. Specifically, the complaint asks the court to rule that:
- Vernor’s resale of authentic, used copies of AutoCAD software is lawful, protected by 17 U.S.C. § 109, and does not infringe Autodesk’s copyright or other rights;
- Autodesk’s “Software License Agreement” is unenforceable or unenforceable as to Vernor;
- Autodesk has no right to interfere with Vernor’s sale of authentic, used copies of Autodesk software;
The amended complaint also seeks injunctions:
- prohibiting Autodesk from further interfering with Vernor’s resale of Autodesk software;
- requiring Autodesk to rescind their DMCA notices of claimed infringement with eBay.
Follow this link to read the text of the amended complaint: Vernor amended complaint
Related articles:
Watchdog Agency Public Citizen Agrees to Represent eBay Seller Vernor in Suit Against Autodesk
Commenting Readers Run Amok about eBay Seller’s Autodesk Lawsuit
Letters in the Vernor Versus Autodesk Case
Vernor Stands Firm in CCNtv Interview
Vernor Gives Autodesk No Ground in CCNtv Interview
eBay Seller Sues Autodesk for $10 Million
The Man Who Dared to Sell AutoCAD Release 14 on eBay
Vernor No Longer In It Just For The Money (Mature warning)
--RSN
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