Autodesk, eBay seller suit could impact sales of secondhand software

[DuttyFoot]

lets see what the outcome will be

Vernor's lawyer responded that while Autodesk can call it a licensing arrangement in which it retains title to the software, in reality it is selling a product that an end-user then owns."There's no way for Autodesk to control the software once it's in the stream of commerce. The particular copy of software gets full value up front. Autodesk doesn't ask for periodic payments," said Greg Beck, a lawyer from the consumer advocacy group Public Citizen who is representing Vernor.He drew a parallel with copyright books. Most books include the line "all rights reserved" in the front. That means someone who buys the book can't make copies of it or read it as a dramatic performance to a crowd. "That's different from saying you don't own the copy of the book you purchased. You do own it because you have the right to keep it or destroy it or burn it or do whatever you want to that copy, even though you don't have the greater rights," he said. By the same token, someone who buys a piece of software has the right to resell the software CD, he said. If the person who sold the software to Vernor keeps a copy of it, in violation of the agreement with Autodesk, that doesn't make Vernor responsible for infringement, he argued."That's the case with any copyrighted material. You never know for sure when you buy a book if the person [who sold it to you] has made a copy," Beck said. "You have no way of knowing."Indeed, Beck has argued that the case could have wider ramifications for consumers. "If copyright owners could restrict resale of their products with these so-called agreements, used book and record stores would soon disappear," he said in a statement when Vernor's case was filed.The two-hour hearing, in the US District Court for the Western District of Washington in Seattle, was in response to motions for summary judgement filed by both sides. The judge can now rule for Vernor or for Autodesk or send the case to trial.Beck expects the judge to rule for one party or the other, and for the loser to appeal. Early last year the judge declined a request by Autodesk to dismiss the case.While Jacobs said the software industry is watching the case closely, few companies have commented on it publicly. Microsoft, the Software and Information Industry Association and the Washington Technology Industry Alliance did not reply to requests for comment.

[DutchDimension]

I thought the outcome had already been decided last year and Autodesk lost (http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars). :)

[polygun]

so all the thousands i spent on 3dsmax from v7 to now.....were just rental fees? Here I thought I owned this stuff I slaved for

[tuna]

If this is held up in appeal, I figure software developers will simply sell their products differently to remove this power from the end user. Probably making things more expensive in the process? Meanwhile ebay is probably still removing software auctions because of (invalid) DMCA notices because they don't have the time to deal with it legally.

[Animasta]

Anxiously awaiting the outcome of this one (though it could take a while). :)

[SheepFactory]

Fingers crossed for autodesk losing this one.

[Grim Beefer]

If Autodesk wins this one, we're going to see everything that can possibly be deemed "software" turned into a shrewd "license agreement" that will prevent our right of first sale. This could easily include all video games, as companies like Sony have already been accused (http://www.techspot.com/news/21708-sony-to-make-it-illegal-to-sell-used-ps3-games.html) of attempting such schemes (goodbye GameStop!).

It's already the case that companies like Amazon claim that the ebooks you purchase from them for your Kindle are not transferable under any conditions due to these liscense agreements. I believe that Valve's Steam service also operates in such a shady manner, and Nintendo, who claims that when you purchase "virtual console" titles you cannot legally transfer them with the sale of the game console!

[evolucian]

if something is merely a rental, it should reflect it in the price by slicing off 50% of it or more. buying a product is owning that 1 product that you bought. you might not own the copywright for reproduction and retail sales, but that 1 product is yours and you are or should be free to do anything you wish with it in terms of usage or resale.

soon ill go to a market, buy an apple and not be allowed to eat it or give it to my friend because tha 1 dollar i paid is only for renting it? stupid.

[Hirazi]

Here's a scary thought: if Autodesk actually lose, won't that just be taken as a justification for higher prices?

[evolucian]

Here's a scary thought: if Autodesk actually lose, won't that just be taken as a justification for higher prices?

their products were sold as full out purchases, not license agreements unless its a studio case where theres 1 app with 20+ licenses for workstations and rende farrm stuff.

Increasing prices will make them further lose ground to competition pricing. not gonna happen.

[Phrenzy84]

Here's a scary thought: if Autodesk actually lose, won't that just be taken as a justification for higher prices?

I thought that, but think about the world we live in. They aren't Microsoft of the 3d world (just yet at least), there are too many cheaper alternatives.

[bmwolf]

I really hope Autodesk loses this! I've never understood what they had to lose by someone selling the product. If someone wants to sell their license then they are not likely going to continue to get upgrades or buy into subscription, but the person interested in buying the used copy might. So collecting dust or in a landfill vs in the hands of someone that might generate future income? :shrug:

[705]

this is why people hate software bussiness model. wayyyyyy to restricted. everyone deserve to resell what they have bought for full license.

[DuttyFoot]

maybe project twitch will put an end to things like this

OVERVIEW

Welcome to project Twitch! This project is testing remote delivery of our applications over the Internet. The goal of project Twitch is to enable you to test and try the latest versions of AutoCAD, Revit, Inventor, and Maya without having to install or download the applications. These applications run remotely on our servers and are delivered to you over the Internet. You will use them in the same way that you would if they were on installed on your system.



http://labs.autodesk.com/technologies/trials/

[Karnageddon]

I've never understood what they had to lose by someone selling the product.

They've lost profit from that potential buyer who would had to pay full price to Autodesk.

[TimothyElliot]

If Vernor's lawyer is sucessful with using that whole argument that purchasing software is like purchasing a book, it sounds like a lot of business opportunities will open up -- like "software libraries," where people could pay a monthly fee to a library and check out software for a certain period of time.

But software companies make their money off repeat customers, so I'd imagine Autodesk loosing this case will cause softare prices to rise universally.

[cresshead]

you can already rent houdini btw.

[dprgb]

I personally hope they win this one. If you look at the case, the guy was selling AutoCAD licenses that had been upgraded. And his claim, as far as I can tell, is that he can sell them because he bought them from someone else... so he never had to agree to the license agreement himself. The person he bought them from is the one who clicked 'ok' to the license agreement so they're the ones at fault.

Lots of companies offer license transfers for a fee (I've had experience with this with Eyeon and Softimage) and that seems to work for them. If Autodesk offered something similar (like they do on their systems products) I could understand that.

If anything, losing this case would probably mean software that checks in to Autodesk when you launch it, so they can deny you running the program. Or, worse yet, you must be on subscription to qualify for upgrades, otherwise you always pay full price for new versions. The problem there being, let's say I have Max 2010... and 2009 and 2008 and a few more older versions. Well, I'm only using 2010 - and I bought and paid for all the other versions. So now I would be able to resell them since I'd 'own' them and the license agreement is unenforceable? I would think this would kill software upgrade pricing in general and make all companies move toward a subscription-based program or 'true' network licensing where you must get your license from the software company every time you launch the program.

[jipe]

But software companies make their money off repeat customers, so I'd imagine Autodesk loosing this case will cause softare prices to rise universally.

Don't think that conclusion necessarily follows. Companies like Pixologic allow resale of their software (and customer support handles license transfers) and they aren't losing business, nor did they have to boost prices by an exorbitant amount. Hell, they don't even charge for major upgrades...

[Redspective]

Increasing prices will make them further lose ground to competition pricing.

LOL Autodesk really doesn't have much more competition... they practically bought out everyone. They'd be cannibalizing themselves if they raised prices :p

[bsm3d]

When you buy a car, can't you resale ? no... So I don't like the way Editors args this kind of policies.

Does you need to pay your car each year to upgrade engine or parts ? no or you decide yourself, we are going in a business model where you must buy subscription, where the next step is use softwares delivered by network, so editors have full controls of your softwares, can decide when you MUST upgrade etc...

If software are complex business model, the laws on economics was here before...

Others like this is when you buy softwares in Us you can't use it in Europe or Asia, what's a locking rights ? Does big editor coming to be Dizzy ?

sorry for my poor english writing.

[Shenan]

soon ill go to a market, buy an apple and not be allowed to eat it or give it to my friend because tha 1 dollar i paid is only for renting it? stupid.

We are closer to that happening than you imagine: http://www.corpwatch.org/article.php?id=11796

Short version: Monsanto creates genetically modified crop seeds (corn, for instance) and "licenses" them to farmers. Farmers are not allowed to save the new seeds that are grown and reuse them for next year's crop.

[bsm3d]

I love this perfect Auto destruction logic :-) Well I continue to recolt my own seeds and plants, I never want Monsanto Seeds !

Most seriously, we are cleary in the top of the end of capitalism as we know it, capitalism will probably stay but changing, evoloving, now that's 10% of most biggest fortune have buy the planet they must go to moon...all is a question of time

[Bullit]

the laws on economics was here before

Precisely


Most seriously, we are cleary in the top of the end of capitalism as we know it, capitalism will probably stay...

Capitalism is having alternatives . Maybe the correct term is Free Market.

------
The biggest problem we have are the outrageous patent claims. Since the Patent Offices are a bureaucracy and like always they want to grow they hand patents to every bizarre supposedly creative functionality.

------
Concerning the Cloud. The Cloud depends if people want it or not and what are willing to accept. If there are competition be either from Blender or any other stuff that might appear.
With many more people being in IT and knowing programming it will be a much less rarefied field. With Capitalism reaching every place in world we will have from Africans to Chineses, everyone putting their brains making software. Means The potential for alternatives will be much bigger.

[dnashj33]

They've lost profit from that potential buyer who would had to pay full price to Autodesk.That's like saying a used car purchase hurts the automaker and the automaker should prohibit such a second hand sale for that reason. Sounds silly for AD to make the very same argument. Call it what they want, but at the end of the day, it's a product...and US laws say the person has a right to resell a product.

Autodesk thinks they can subvert the law by trying to rename the product something else.
If they state "lease a license," that's one thing...but their own website and resellers hinder their case buy using the word "Purchase."

I think Houdini allows leasing...maybe Eyeon too.

[Walli]

Autodesk thinks they can subvert the law by trying to rename the product something else.
If they state "lease a license," that's one thing...but their own website and resellers hinder their case buy using the word "Purchase."

I think thats exactly the problem, on one side they try to make the customers feel like they bought something, that they have something that they own. On the other side they prefer "leasing", as they have more control over what customers are allowed.

There always will be different types of customers, one that only buys, the other that also is okay with leasing. But I think it would help a lot, if they would clearly state on their site, what they do - selling, or leasing.

[Hirazi]

Strictly speaking, you don't purchase the software anyway, you purchase the license, it's usage rights, as defined by the company selling it.
In the words of the "almighty" Wikipedia (http://en.wikipedia.org/wiki/Software_license):
The hallmark of proprietary software licenses is that the software publisher grants a license to use one or more copies of software, but that ownership of those copies remains with the software publisher (hence use of the term "proprietary"). One consequence of this feature of proprietary software licenses is that virtually all rights regarding the software are reserved by the software publisher. Only a very limited set of well-defined rights are conceded to the end-user.
I'm obviously NOT saying this is good thing, but it has been common practice for years and I doubt this court case will truly and shockingly change that...

[ThirdEye]

With Capitalism reaching every place in world we will have from Africans to Chineses, everyone putting their brains making software. Means The potential for alternatives will be much bigger.

When half the world was sporting a red flag the commie countries still had missiles, satellites, spaceships and whatnot. It's not a matter of what market form you're adopting, it's a matter of how rich you are and how much you can spend in R&D. The fact that capitalism might become the rule everywhere doesn't mean that poor countries won't stay poor. Why do you think there are still many poor people in the world? Because they're retards that can't potentially compete with rich countries like the USA or the EU? It's because the rich ones have all the interests to keep being rich and keep others poor. Because if everyone is rich then nobody is.

[DanielWray]

If you purchase a license from the company and not the software, then just resell your product key. State in a sale that you are selling your product key.

I mean if you are only buying the product key and leasing the software, then by selling what you legally own then you aren't breaking any laws.

[bisenberger]

Looks like AD lost. Don't know how this will affect licensing.

http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars

[L33tace]

Looks like AD lost. Don't know how this will affect licensing.

http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars
that's from May 2008 so that is probably the decision from Audodesk's motion to have the case dismissed.

October 09 - this is the trial decision/final judgment (well until Autodesk appeal this decision)
What took place Tuesday was a hearing on the summary judgement motion. Here, parties put forward the undisputed facts, after which it is the judge's job to apply the law on those undisputed facts (thanks for the explanation, Brian). The judge can then side with either of the two parties, or, if the judge believes there are still disputed material facts, let it go to trial.

After hearing the undisputed facts, judge Richard A. Jones has sided with Vernor, more or less slapping Autodesk on the wrist. Judge Jones points to both the First Sale Doctrine and the Reproduction Exception. The first Sale Doctrine dictates that owners of copyrighted material may resell this material, despite the monopoly copyright holders have over said material. The Reproduction Exception states that owners of software may make any copies necessary to use the program. Without the latter, you would be unable to run software without breaking copyright law.

The judge further states the Vernor is indeed the owner of the copies of the AutoCAD software he was selling on eBay. The judge obviously reiterated that while Autodesk owns the copyright to AutoCAD, Vernor owns the copies.

http://www.osnews.com/story/22270/Judge_Sides_with_Vernor_Slams_Autodesk

[cresshead]

quite an exciting thread you have here :D

[robcat2075]

Strictly speaking, you don't purchase the software anyway, you purchase the license, it's usage rights, as defined by the company selling it.


The point of the lawsuit seems to be that such a premise isn't really valid, that they are really still selling software but trying to cancel your legal rights by calling it not-selling-software.


Calling an unlawful act by a different name isn't a valid defense for breaking a law.

If you steal something, calling it a "property transfer" won't get you off.

Likewise there are certain rights you can't lose even if you sign something that says you want to give them up. Someone can't legally pay you less than minimum wage even if you signed something to that effect.

So hopefully the EULAs at issue here (that no one evens signs) will be held to be invalid in the same way.

[RobertoOrtiz]

Ok so we have some common ground:

From
Lawupdates.com
link (http://www.lawupdates.com/summary/federal_judge_approves_ebay_auction_of_copyrighted_autodesk_autocad_design)
June 2, 2008
The U.S. District Court for the Western District of Washington held that the plaintiff second buyer of defendant Autodesk’s (“Autodesk”) copyrighted AutoCAD design software could legally auction such product on eBay, thus overruling Autodesk’s objection that its copyright prohibited resale. In particular, the District Court declared the transfer of the software packages from Autodesk to a first buyer was a sale with contractual restrictions only on the product’s use and transfer. The first sale doctrine, codified in statute, allows a buyer to resell the product even if he had contractually agreed not to do so. According to the District Court, subsequent sales do not constitute copyright violation, contractual prohibitions against succeeding transfers notwithstanding. In the second buyer’s action for declaratory relief to prevent the restraint of his business by Autodesk, the District Court denied Autodesk’s motion to dismiss the action.

Detailed Summary:

Plaintiff Timothy S. Vernor (“Vernor”) was engaged in the business of selling goods on eBay, a popular Internet auction site. Among the goods he sold were packages of defendant Autodesk, Inc.’s copyrighted AutoCAD design software. Vernor instituted this action for declaratory relief in the U.S. District Court for Western District of Washington on the ground that Autodesk’s past actions gave him a basis to believe it would restrain his sales.

In 2005 and 2007, Vernor bought authenthic, used AutoCAD packages for sale on eBay. On four occasions during those years, he received Digital Millennium Copyright Act (“DMCA”) notices from Autodesk to inform him that his intended sale infringed its copyright. Each time, eBay suspended the auction. Vernor followed with counter-notices claiming that his sale was lawful, to which Autodesk would not respond. eBay reinstated the auctions eventually, and the sales proceeded without any interference from Autodesk.

This action arose from Vernor’s intention to sell two AutoCAD packages on eBay. Autodesk determined that both packages were originally transferred from Autodesk to Cardwell/Thomas Associates (“CTA”), a Seattle-based architecture firm, as part of a Settlement Agreement (“SA”) made in an unrelated dispute. In particular, the SA stipulated that CTA agreed to “adhere to all terms of the (attached) Autodesk Software License Agreement.” Opinion, p.3, citing LaHaie Decl., Ex. A, ¶ 4. The License Agreement (“License”) granted a “nonexclusive, nontransferable license to use the enclosed program . . . according to the terms and conditions herein.” The License imposed various restrictions on users of the software. Id. It also imposed several “Restrictions,” including a prohibition on the “rent, lease, or transfer (of) all or part of the Software, Documentation, or any rights granted hereunder to any other person without Autodesk’s prior written consent.” Id.

As a result, Vernor sought a declaration that his resale of AutoCAD was lawful, and also claimed unfair competition under either California or Washington law. In response, Autodesk files motions to dismiss Vernor’s claims for failure to state a claim, or alternatively, to enter summary judgment. Autodesk specifically asserted in its motions that Vernor only held a contractual license to use the software and did not actually hold full property interests in the programs.

In denying Autodesk’s motions, the District Court held that Vernor was entitled to protection under the first sale doctrine. The first sale doctrine permits a person who owns a lawfully-made copy of a copyrighted work to sell or otherwise dispose of the copy. The first sale doctrine is a narrow limitation on a copyright holder’s rights. This doctrine is stated in the following statutory provisions: “Notwithstanding the provisions of section 106(3) [17 USCS § 106(3)], the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” 17 U.S.C. § 109(a). Because a first sale exhausts the copyright holder’s distribution right, future distributions of the copy do not implicate the Copyright Act. Opinion, p.7, citing United States v. Wise, 550 F.2d 1180, 1187 (9th Cir. 1977). A first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells. Id. For example, the first sale doctrine permits a consumer who buys a lawfully made DVD copy of “Gone With the Wind” to resell the copy, but not to duplicate the copy. Id.

Here, there was no dispute that the copy of Autodesk software contained in each AutoCAD package was lawfully made. Taking a cue from Wise, the District Court held that the License allowed CTA to retain possession of the software copies in exchange for a single up-front payment. Because the Settlement Agreement and License imposed onerous restrictions on transfer of the AutoCAD copies, such as that CTA was required to destroy the software in the event that it purchased a software upgrade, the District Court held this was a “sale with restrictions on use,” and was a” sufficient basis to invoke the first sale doctrine.” Opinion, pp.10-11. Therefore, the District Court concluded that Vernor’s resale of the AutoCAD packages was not a copyright violation. Opinion, p. 16.

On the basis of the foregoing, the District Court denied Autodesk’s motions to dismiss or for summary judgment.

[CHRiTTeR]

so its legal for me now to buy an autodesk product from an american person (and thus not having to pay the ridiculous price we europeans have to pay)?

[Hirazi]

I suspect it won't be that simple! :argh: ;)

[705]

I suspect it won't be that simple! :argh: ;)

enlighten me pls :)

[bmwolf]

They've lost profit from that potential buyer who would had to pay full price to Autodesk.

Assuming that person had the money to make the full purchase and didn't just go with a competing product with a lower initial cost. I don't have figures but I would imagine they make more money from upgrades and subscription than initial purchases. Just speculation on my part though.

[Hirazi]

enlighten me pls :)
First of all, Autodesk will surely appeal this verdict,
so it will take quite some time before the whole wide world will "benefit"
from this ruling, if ever.
Secondly, I suspect being able to sell, being able to buy
and being able to use are totally different ball-games...
The Autodesk EULA already has certain "limitations" in place to
prevent usage outside of the country of purchase.
This doesn't seem to change that...

But, my laywer informs me to tell you: I'm no lawyer!!! :thumbsup:

[CHRiTTeR]

First of all, Autodesk will surely appeal this verdict,
so it will take quite some time before the whole wide world will "benefit"
from this ruling, if ever.
Secondly, I suspect being able to sell, being able to buy
and being able to use are totally different ball-games...
The Autodesk EULA already has certain "limitations" in place to
prevent usage outside of the country of purchase.
This doesn't seem to change that...

But, my laywer informs me to tell you: I'm no lawyer!!! :thumbsup:

Well yeah, but this whole thing is about the fact they can say what they want in their EULA, that doesnt make it true.
And i hope its going to be illegal for them to state different in their eula.

I dont know any reason why it should be 'forbidden' for me to buy a copy of max from someone in the USA after this trial.

As far as i know, i have the right to buy from whoever i want.
Whether autodesk likes it or not.

[Hirazi]

You might be right... But are you willing to go to court over it? ;)

edit: the whole concept of EULA's didn't just go overboard, because of one ruling by a federal judge in the U.S. Moreover European Law and US Law might seem similar but you'd still have to find a judge in Europe to convince him/her to rule similarly "over here", before the whole appeal this/appeal that circus can start...

[CHRiTTeR]

You might be right... But are you willing to go to court over it? ;)

Thats my point, thats whats going on right now already, no?

[Hirazi]

edit: the whole concept of EULA's didn't just go overboard, because of one ruling by a federal judge in the U.S. Moreover European Law and US Law might seem similar but you'd still have to find a judge in Europe to convince him/her to rule similarly "over here", before the whole appeal this/appeal that circus can start...

Quoting my own "edit" to place it in response to your post!!!

And US law does NOT, I repeat does NOT (yet) apply to the whole world!!! ;)

[Karnageddon]

Assuming that person had the money to make the full purchase and didn't just go with a competing product with a lower initial cost. I don't have figures but I would imagine they make more money from upgrades and subscription than initial purchases. Just speculation on my part though.

Autodesk holds a monopoly on some of the most highly reputed software used in the industry, sure people have an option to purchase a competing product but the majority wont bother learning new software as they may not have the time or patience for it and I assume it would not help them much when applying for jobs at studios that work specifically with 3ds max and maya.

As far as the pricing goes, it has dropped quite a bit over time and the upfront markup may not help them make any actual profit, it could be used to fund the R&D of the software line they now hold. Subscription profit comes once a year and generates into profit over a number of years.

[CHRiTTeR]

Quoting my own "edit" to place it in response to your post!!!

And US law does NOT, I repeat does NOT (yet) apply to the whole world!!! ;)


Well yeah, but the guy selling his copy lives in the US, not somewhere else in the world.
Court says he is the rightfull owner of his copy and license.
So by law he has the right to sell (as long he doesnt sell duplicated copies) just like all the other stuff on ebay.

Theres nothing illegal about buying legal software from the legal owner in another country

[bmwolf]

Autodesk holds a monopoly on some of the most highly reputed software used in the industry, sure people have an option to purchase a competing product but the majority wont bother learning new software as they may not have the time or patience for it and I assume it would not help them much when applying for jobs at studios that work specifically with 3ds max and maya.

Not quite. They own 3 major packages(edit: DCC packages), of which I own two. There are still other cheaper options, especially if you don't need all the features. Modo, Cinema, Houdini, Blender, Lightwave, Zbrush, and on and on. While knowing a certain package might be helpful, I doubt a studio would ignore a great portfolio just because it wasn't done in Max, Soft, or Maya. It's more important to know a technique than a tool IMHO.



As far as the pricing goes, it has dropped quite a bit over time and the upfront markup may not help them make any actual profit, it could be used to fund the R&D of the software line they now hold. Subscription profit comes once a year and generates into profit over a number of years.

Not sure what you're trying to say here, but I've always believed that it was better to make profit slow and steady than to make it fast and unsustainable. Short sighted profit seeking is part of the reason we're in our current economic situation. This is why I would think that getting existing customers onto subscription or upgrades would be of more importance to them than the initial purchase(or how that initial purchase occurred). Honestly I have 0 facts to back this thought up though, so I'm just talking out of my a$$.

[Karnageddon]

Not sure what you're trying to say here, but I've always believed that it was better to make profit slow and steady than to make it fast and unsustainable. Short sighted profit seeking is part of the reason we're in our current economic situation. This is why I would think that getting existing customers onto subscription or upgrades would be of more importance to them than the initial purchase(or how that initial purchase occurred). Honestly I have 0 facts to back this thought up though, so I'm just talking out of my a$$.

I agree, it makes perfect sense but as you stated: we wouldn't be in this economic situation otherwise, so obviously it does not work that way. I still think it makes more sense for them to use purchase costs towards R&D as well as the advancement of the company and using the subscription/upgrade costs towards profit, that way both bases are covered.
We are both speaking hypothetically so both may be completely way off but it is my opinion still that they do profit from the original purchase which is why they want to prevent new users from buying used software with no profit to them.

[spindraft]

Not quite. They own 3 major packages, of which I own two.

3? Maybe for your industry. For the most part, Autodesk has nearly every sub-discipline of drafting/design locked down. There are a few competing products, but in most of these industries, their market share is insignificant. If you toured architectural & engineering offices across the country, I guarantee you'd see enough Autodesk products to last a lifetime.

[bmwolf]

3? Maybe for your industry. For the most part, Autodesk has nearly every sub-discipline of drafting/design locked down. There are a few competing products, but in most of these industries, their market share is insignificant. If you toured architectural & engineering offices across the country, I guarantee you'd see enough Autodesk products to last a lifetime.

Come on, had you read the post you'd understand I was talking about the media creation department. I'm well aware they own many many applications, but no one is going to go pick up Cinema 4D because they can't afford AutoCAD. Just because they are widely used does not mean they are a monolpoly which is the whole point I was making. Sorry I didn't make that clear as crystal.

[spindraft]

Come on, had you read the post you'd understand I was talking about the media creation department. I'm well aware they own many many applications, but no one is going to go pick up Cinema 4D because they can't afford AutoCAD. Just because they are widely used does not mean they are a monolpoly which is the whole point I was making. Sorry I didn't make that clear as crystal.

I did figure that's what you meant. I'm merely pointing out the fact that in the big picture 'entertainment' packages are only a small slice of what autodesk does. And in some of the other industries, wether or not autodesk's position could be considered a monopoly is quite debatable.

[bobbyrtaylor]

their products were sold as full out purchases, not license agreements unless its a studio case where theres 1 app with 20+ licenses for workstations and rende farrm stuff.

Increasing prices will make them further lose ground to competition pricing. not gonna happen.

I fully agree evolucian especially after they just lower the price on Maya. Raising the price would be disastrous.


Bobby

[GravidEngine]

I don't feel that anyone has a place to tell Autodesk what they can and can't do with their copyright. The whole point of business is to put as much cost and beneficial restrictions on a product as the consumer will allow. Obviously if the consumer continues to buy the product, they are still benefiting more from the software than they are losing from it.

I also believe consumers need to step up boldly more often if they feel that something is to their dissatisfaction (and that doesn't mean calling in the government). If you think this is so horrible and the government needs to intercede, then maybe you should just stop buying their product if it's really causing you so much trouble. By continuing to buy their product, you are saying "I'm okay with your current prices and legal agreement".

And I don't think they are trying to be deceitful or anything because as far as I can remember I have always understood that it is the license to use the software that you are buying. Maybe it causes problems for finding pirates if the pirate can just say... "oh I bought it from someone else... don't mind the fact that 2,000+ people have the same product key."

I don't mean to infuriate anyone. It's simply my current opinion at a glance with what I understand (which isn't too much) about the business-consumer relationship. If someone has some better insight about what I have said, I will gladly change my opinion!

[bobbyrtaylor]

I don't feel that anyone has a place to tell Autodesk what they can and can't do with their copyright. The whole point of business is to put as much cost and beneficial restrictions on a product as the consumer will allow. Obviously if the consumer continues to buy the product, they are still benefiting more from the software than they are losing from it.

Hello GravidEngine very good reply if I might add.

The argument is not telling Autodesk what they can and can't do with there copyright but rather is using there own (Autodesk) copyright in his favor and this is what the agreed with.

Businesses are still govern buy the law of the land first, this is why certain business can't sell there product in certain countries. Mr Vernor is also a business whom Autodesk said was violating there copyright agreement and he said that he did not. Therefore now you need a middle man to solve the matter which is the government the same middle man that Autodesk would have use to suit the man if he (Vernor) would have continue to sell there product.


I also believe consumers need to step up boldly more often if they feel that something is to their dissatisfaction (and that doesn't mean calling in the government). If you think this is so horrible and the government needs to intercede, then maybe you should just stop buying their product if it's really causing you so much trouble. By continuing to buy their product, you are saying "I'm okay with your current prices and legal agreement".


Like I said above the government is a legal method that is at our disposal to us to resolve a matter. There no harm in using the government. What do you think Autodesk would have done if eBay would have ignore there petition?

I always believe that buying software is the most unfair practice around, This is a business where you can sell something broken at a high price and they tell you you don't own it but is borrowing it to help there company research how to make the next version more buggy so on and so on and nobody holds you accountable.


I have always understood that it is the license to use the software that you are buying.


This is the whole argument of the case.


Maybe it causes problems for finding pirates if the pirate can just say... "oh I bought it from someone else... don't mind the fact that 2,000+ people have the same product key."


This is not the same argument in the courts.


I don't mean to infuriate anyone. It's simply my current opinion at a glance with what I understand (which isn't too much) about the business-consumer relationship. If someone has some better insight about what I have said, I will gladly change my opinion!

I understand GravidEngine We all have opinions but this is a matter of a legal bidding document EULA.

Here is what it come down to.

"Court smacks Autodesk, affirms right to sell used software"

"With the help of Public Citizen, an eBay merchant has won the right to sell used copies of AutoCAD on eBay. Autodesk had sought to block the sale under the software's license agreement, but a court ruled that such sales were legal under copyright's First Sale Doctrine."

per.

http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars


Have a great day GravidEngine.

God bless

[GravidEngine]

Thank you for your rather calm reply.

The argument is not telling Autodesk what they can and can't do with there copyright but rather is using there own (Autodesk) copyright in his favor and this is what the agreed with.

But how is he using their license agreement in his favor when it clearly states:
"Autodesk grants You a non-sublicensable, non-exclusive, non-transferable,
limited license to use copies of the Software and User Documentation in Your Territory"

If the above was simply added after this case, please correct me. But as far as I remember, this has been the deal for years.

I understand that it's legal to sell used software, what I don't understand is how this law supersedes a license agreement. It is also legal to dye your hair. However if you are employed by a company that states in your contract that you will be terminated if you dye your hair, well you will be terminated and the government won't step in on the matter. So what makes this case any different?

I guess this is what I'm hung up on. Though I admit some of the nuances of law fly right over my head, I simply can't grasp that, just because something is legal it becomes mandatory? I thought that's only how illegal things worked.

[DanielWray]

From what I gather, to make this enforceable AD would have to state in every publication, advert and brochure that you are "licensing their product", at the moment you see the word "Buy", Buy is a very different thing to license.

I'm not expert on this matter, but it does seem as if AD and the vast majority (If not all) of the software industry is trying to push the consumer into a corner with license agreements like this, which is totally unfair as the seller was with in his rights to do so.

I mean, Just because it is software doesn't make it any different to buying a car, of course with a car you can't copy it and resell it, but from what I've read the suspect here wasn't accused of copying and then reselling the items. I think it's a little like the music industry, they know piracy is a big problem and perhaps people selling on their software second hand for a little cheaper is also a big problem, but to me this whole thing seems like a ploy by companies (AD in this case) to try and block rights of the consumer, with agreements like this.

[GravidEngine]

From what I gather, to make this enforceable AD would have to state in every publication, advert and brochure that you are "licensing their product", at the moment you see the word "Buy", Buy is a very different thing to license.

Buy isn't at all different because you are buying the license. Everywhere I look they talk about a license. So I'm not really sure what you are talking about. Everybody sounds like they are saying Autodesk is being shifty and dishonest when they clearly state that it's a license. In fact this is the first time I've heard people not calling it a license. Although I admit I came to know Autodesk from my education in which everyone talked about an educational license or a professional license. It is still clearly stated that it is a license on any of the educational resellers and any of the major resellers I've seen, including DELL and PC Connection.

I'm not expert on this matter, but it does seem as if AD and the vast majority (If not all) of the software industry is trying to push the consumer into a corner with license agreements like this, which is totally unfair as the seller was with in his rights to do so.

Autodesk even has a return policy. It even says it right in the license agreement:
IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU
REPRESENT ... WITHIN THIRTY (30) DAYS FROM THE DATE OF
ACQUISITION, RETURN THE SOFTWARE TO THE LOCATION WHERE YOU ACQUIRED IT FOR
A REFUND.

3.2.3 Transfers. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise
transfer all or any portion of the Autodesk Materials, or any rights granted in this Agreement, to any
other person without the prior written consent of Autodesk.

So seeing how the above is clearly stated. How do you logically deduce that it was within this guy's right to resell Autodesk's product? I mean sure, he obviously got a judge to rule that way but that's part of my point, the judge's ruling is obviously unfair to Autodesk.

I mean, Just because it is software doesn't make it any different to buying a car

That makes it extremely different. Software is more like instructions. They are selling the computer instructions required to do something specific. Companies do this all of the time. In their contract it may state that a person may not divulge how things are done at the company to anyone else and the individual must respect that or face repercussions. This guy is divulging Autodesk's computer instructions outside of their contract with him. Whether the buyer uses those instructions or not, it is still against the agreement.

So what I want someone to tell me is: how is it right to force a company or any individual to allow something that they explicitly state is not allowable with their product.

And why are you all bashing on Autodesk so much, don't get me wrong, I think there are plenty of issues with Autodesk, however I have plenty of issues with my car, my computer, blah blah blah.

It's like you're going up to a fruit stand and saying "You're fruit tastes bad and is overpriced. I'll take two."

[Karnageddon]

That makes it extremely different. Software is more like instructions. They are selling the computer instructions required to do something specific. Companies do this all of the time. In their contract it may state that a person may not divulge how things are done at the company to anyone else and the individual must respect that or face repercussions. This guy is divulging Autodesk's computer instructions outside of their contract with him. Whether the buyer uses those instructions or not, it is still against the agreement.

So what I want someone to tell me is: how is it right to force a company or any individual to allow something that they explicitly state is not allowable with their product.

And why are you all bashing on Autodesk so much, don't get me wrong, I think there are plenty of issues with Autodesk, however I have plenty of issues with my car, my computer, blah blah blah.

It's like you're going up to a fruit stand and saying "You're fruit tastes bad and is overpriced. I'll take two."

There's two sides to this and both are actually influenced by law, so in this case neither party was at fault, it was the court's decision to determine who should lose.

The first sale doctrine allows Vernor to re-sell the software. Since he bought the software used and therefore never through Autodesk, their EULA does not apply as he never had a chance to study it till after the software was purchased, pre-used (as an owner of a student edition autodesk product, I never had to agree to their EULA on purchase through their distributors, I only agreed to the EULA upon installation).
Autodesk argues; citing the fair use doctrine, that they sell the license only and not the actual software, therefore re-selling the license is against fair use policy. The person at fault here was whoever sold the software to Vernor in the first place, but AD went after Vernor instead.

What will most likely end up happening is that prices wont be affected, but AD will be forced to slap a huge disclaimer on the software cover stating the conditions of purchase rather than just in the EULA. Think of it as "Caution: iron may get hot during use", Peanut butter jar: "May contain traces of peanuts and other nuts" and similar labels we see on products all the time.

This is not a victory for anyone except Vernor, you still cannot re-sell Autodesk products if you decided to and the law will most likely side with autodesk if they decide to come after you. Just my opinion.

[mhouse777]

I think the court ruling was reasonable . Being also a musician that was in a band on a major label, we sold thousands of copies of our music to people . They didn't own the the rights to COPY them though, but they did own the copys they bought. I'd see our album on ebay quite a bit and for way less. It'll be interesting to see what the outcome will be overtime with AD going to Cloud computing.

[GravidEngine]

The person at fault here was whoever sold the software to Vernor in the first place, but AD went after Vernor instead.

But the person who sold it to him did not enter into the agreement with Autodesk since he did not even open it. It is only once you agree to the terms, install, upload to your computer, etc. that the contract exists, so Vernor is the person who activated the license and thus it stops at Vernor based on Autodesk's agreement.

However, I read more up on it and I guess I realize I am wrong about what legally should be done (since it seems as though the whole point of the "first sale doctrine" is to disallow copyright holders from controlling transference of said material).

So yes, based on previous court rulings, Vernor is in the right. I guess I just disagree with the previous court ruling. I think it was for a different time when the flow of information may have been being controlled. However, now almost anyone (given an extremely large amount of time) could rival Autodesk with a c++ compiler and access to wikipedia and some math websites. It also seemed to be geared towards people buying the product with the intent to sell as the case came about after a group bought a bunch of books and sold them at a lower price than the copyright holder authorized.

I don't know, just speculation. However, I am biased in that I feel that it is better to have few and clear laws rather than having 1000s of confusing ones.

So I guess I'll shut up now and have my argument in some sort of laws forum.

Though that doesn't make it right to think Autodesk is evil because they are trying to have specific terms for their software. My understanding was that Autodesk wasn't attacking Vernor but simply trying to get him to abide by the license agreement he agreed with.

[Karnageddon]

But the person who sold it to him did not enter into the agreement with Autodesk since he did not even open it. It is only once you agree to the terms, install, upload to your computer, etc. that the contract exists, so Vernor is the person who activated the license and thus it stops at Vernor based on Autodesk's agreement.

Though that doesn't make it right to think Autodesk is evil because they are trying to have specific terms for their software. My understanding was that Autodesk wasn't attacking Vernor but simply trying to get him to abide by the license agreement he agreed with.

I've been reading the complete opposite? Vernor bought AutoCAD used at a garage sale and then sold it. Vernor's argument was that he had never used it, therefore never agreed to their terms.

I'll agree with you on autodesk not being evil because of the licensing issue, they have done some things far worse to be thought of that way; like going after studio's who legitimately bought their software.

[bobbyrtaylor]

This is not a victory for anyone except Vernor, you still cannot re-sell Autodesk products if you decided to and the law will most likely side with autodesk if they decide to come after you. Just my opinion.

Hello Karnageddon

Lets put this to the real world test and see if this just a victory for Vernor only.

Item 1:
Lets say something happen to a "license" Autodesk owner and there spouse takes the softwares and have a have a garage sale not knowing anything about EULA, somebody buys them and they sells them on eBay.

Item 2:
A busy goes out of business the landlord dumps the software in a dumpster somebody finds them and sell them on eBay.

Item 3:
Someone losses there brand new package of software without the receipt in the bag a person finds them turn it in to the police nobody claim it in 30 days the police dept. turn it back over to the person who finds them and he sell them on eBay.

So on and so on You get my drift. This "could be" why Autodesk is seeing this matter through the court system as you can see this can go beyond Vernor.

God bless

[bobbyrtaylor]

Thank you for your rather calm reply.


No problem GravidEngine.


But how is he using their license agreement in his favor when it clearly states:
"Autodesk grants You a non-sublicensable, non-exclusive, non-transferable,
limited license to use copies of the Software and User Documentation in Your Territory"

If the above was simply added after this case, please correct me. But as far as I remember, this has been the deal for years.

I understand that it's legal to sell used software, what I don't understand is how this law supersedes a license agreement. It is also legal to dye your hair. However if you are employed by a company that states in your contract that you will be terminated if you dye your hair, well you will be terminated and the government won't step in on the matter. So what makes this case any different?

I guess this is what I'm hung up on. Though I admit some of the nuances of law fly right over my head, I simply can't grasp that, just because something is legal it becomes mandatory? I thought that's only how illegal things worked.

Since Karnageddon kind of responded to this I will unanswered this comment.

BTW I wants to make it perfectly clear that I have no desire in attacking Autodesk I own many of there products and would continue to own there products I may not like certain things that they do but my dealing with them is purely business not personal If the discontinue producing the products that I like then I would move on.

God Bless

[Karnageddon]

Hello Karnageddon

Lets put this to the real world test and see if this just a victory for Vernor only.

Item 1:
Lets say something happen to a "license" Autodesk owner and there spouse takes the softwares and have a have a garage sale not knowing anything about EULA, somebody buys them and they sells them on eBay.

Item 2:
A busy goes out of business the landlord dumps the software in a dumpster somebody finds them and sell them on eBay.

Item 3:
Someone losses there brand new package of software without the receipt in the bag a person finds them turn it in to the police nobody claim it in 30 days the police dept. turn it back over to the person who finds them and he sell them on eBay.

So on and so on You get my drift. This "could be" why Autodesk is seeing this matter through the court system as you can see this can go beyond Vernor.

God bless

I have no doubt it will go beyond Vernor, but this particular victory has in no way introduced any laws or doctrines to prevent it from happening again to people in Vernor's position or the people in the examples you gave; there will always be another judge, with another ruling. They have no choice but to consider every case individually, so unless the next case has exactly the same story and conditions that Vernor did, it may not have the same outcome.
There have been cases very similar to this before (non autodesk related) and they never have the same outcome because the details and circumstances differ from person to person.
Also keep in mind, we do not know how many times autodesk has prevented people in Vernor's position to re-sell the software by using lawyers to scare them away, therefore never making it to the media. For AD, this might be the first failure in a long line of similar occurrences.

[DuttyFoot]

the appeals court ruled and autodesk won. according to the appeals court some software cannot be bought.

http://www.huffingtonpost.com/2010/09/12/appeals-court-rules-some-_n_713652.html

The doctrine refers to a 102-year-old decision by the U.S. Supreme Court that determined copyright holders can't prevent a buyer from reselling or renting a product after an initial sale, as long as additional copies aren't made.

It's a legal principle that allows used book and music stores to operate, as well as DVD subscription services such as Netflix Inc.

But a three-judge panel in the 9th Circuit concluded the first-sale doctrine didn't apply to used software programs that online merchant Timothy Vernor peddled in his store on eBay. Vernor had bought the unopened software, made by Autodesk Inc., at garage and office sales, without ever agreeing to the licensing agreement imposed on the original buyer.

That contract made it clear the rights to install Autodesk Inc.'s software were being licensed rather than sold, according to the 9th Circuit's interpretation.

Without a definitive sale, the first-sale doctrine is moot, the appeals court reasoned in its decision overturning a lower federal court in Washington state.

Autodesk, which is based in San Rafael, said it was pleased with the decision. The Software & Information Industry Association had filed documents supporting Autodesk's position in the case.
The ruling sets the stage for even more legal skirmishes over the definitions of a sale and a license, said Corynne McSherry, an attorney for the Electronic Frontier Foundation, a group fighting to set the boundaries of digital copyrights.

"I am sure there are going to be others (in the media) trying to find the magic words that prevent a buyer of intellectual property from being considered the owner," McSherry said.

Another round in the 3-year-old battle pitting Vernor against Autodesk seems assured. Vernor's attorney, Gregory Beck of Public Citizen, said he intends to ask a full panel of 11 judges in the 9th Circuit to review Friday's decision before considering a possible appeal to the U.S. Supreme Court.

For the moment, Beck and another attorney involved in the case, Sherwin Siy of Public Knowledge, said they expect the 9th Circuit's decision to have a chilling effect on the used software market.

That's something that eBay Inc. had hoped to avoid. The e-commerce company, based in San Jose, Calif., filed a brief in support of Vernor's legal arguments citing the protections under the first-sale doctrine.

Many other popular software programs already installed on home and office computers are covered by licensing agreements using similar language to Autodesk's programs, Beck said.

"That means the infrastructure already is in place for other software makers to say their customers don't really own those programs," he said.

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