The all-star legal team representing eBay seller Timothy Vernor against Autodesk has filed a response to Autodesk’s defense. The 27-page document is—for a legal filing—exceptionally well-written and clear. It makes a strong case against current software licensing practices as practiced by many firms, not just Autodesk.
The following passage, taken from the document, gets to the heart of the case Vernor makes against Autodesk:
Although Autodesk primarily relies on copyright infringement as a basis for interfering with Vernor’s eBay sales, its brief at various points makes use of doctrines from both copyright and contract law. Only by improperly merging these concepts can Autodesk claim, on the one hand, that a purchaser’s consent to the terms of a license agreement overrides the Copyright Act’s explicit grant of the right to resell copyrighted works, and, on the other, that this rule applies even to those who have not consented to the terms of the agreement. Regardless of how Autodesk characterizes its claims, however, it has no right to cancel Vernor’s sale of authentic, lawfully purchased software.
Vernor makes his living selling on eBay, where he goes by the eBay handle “Happy Hour Comics.” The legal response recaps the entire history of Vernor’s troubles that started when he acquired copies of AutoCAD Release 14 at a garage sale and tried to resell them, one by one, on eBay. Each time Vernor would post a copy of AutoCAD for sale, a lawyer representing Autodesk would ask eBay to remove the sale; Autodesk claimed in each instance that Vernor was violating the Digital Millennium Copyright Act (DMCA). eBay would remove the sale, Vernor would appeal, and eBay would allow the sale to continue. After several such sequences, eBay cancelled Vernor’s account. It took over a month for Vernor to regain the ability to sell on eBay, his sole source of income. After that, without benefit of legal help, Vernor filed a federal lawsuit against Autodesk. Based on AECnews’ original coverage of the case, the non-profit public watchdog agency Public Citizen offered to provide legal council to Vernor. Public Citizen had been looking for an opportunity to test the validity of software licensing schemes in federal court, and saw the Vernor case as the ideal opportunity. Later, famed Seattle lawyer Michael Withey also joined the Vernor legal team. Withey is best known as the attorney who successfully sued former Philippine dictator Ferdinand Marcos in US court, winning a judgment in the millions for his clients.
CAD industry analyst Evan Yares, former Executive Director of the Open Design Alliance, comments:
This is a very solid piece of work. It is clear and convincing. And it is exceptionally well-argued, citing every piece of important law relevant to the case. Vernor's attorney simply takes apart every argument that Autodesk's attorneys make, and exposes them to the bright glare of daylight. He leaves no obfuscation unclarified—from the opposing attorney's careful commingling of contract and copyright law, to their seemingly sloppy (but actually carefully constructed) blurring of ownership.
It is important to understand that this case is not about Autodesk. And it's not about the DMCA. It's about making big time case law, setting bounds and limits on software license agreements. Autodesk has nothing to gain, and everything to lose. They're the defendant... and it's a declaratory judgment case. There is no discovery to take, no way to run up Vernor's legal costs. There is no money to win, only money to lose. If Autodesk gets this case dismissed on a technicality, another case will come along that doesn't have the technicality. If they win, they're no better than status quo. But the reality is that they are likely to lose. And, if Autodesk does lose, the entire software industry's argument that software doesn't fall under the Uniform Commercial Code falls apart.
Links:
Text of Vernor Response to Autodesk with Request for Oral Arguments, as Filed in US District Court
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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