What started as the frustrations of a lone eBay reseller may
become an opportunity for new federal case law to be written
regarding software licensing. Timothy S. Vernor vs. Autodesk has
attracted media attention and the interest of Public Citizen, a
nonprofit advocacy group founded by Ralph Nader, which has
identified the issues of the case as part of its advocacy agenda
for 2007.
The History of the Case
For the last seven years, Vernor has made a living selling
through eBay; he specializes in vintage comic books (eBay name,
“HappyHourCollectables”) but will post for auction anything he
comes across with potential resale value. After acquiring five
copies of AutoCAD Release 14 at a yard sale, he posted them for
sale, one at a time, on eBay. Each time Autodesk filed a
complaint with eBay, using eBay’s Verified Rights Owners (VeRO)
program. Each time eBay pulled the auction and sent Vernor an
automated note telling him to work things out with Autodesk. It
is eBay policy to remove a listing first and ask questions later
when a software company files a protest. Each time Vernor
appealed to eBay; each time the auction was relisted.
Timothy S. Vernor, known on eBay as “HappyHourCollectables”
After the fifth time, eBay suspended his seller account,
leaving him without access to his sole source of income. It took
Vernor 30 days to convince eBay he was not a criminal and to
have his seller account reinstated. After studying relevant law
on his own, Vernor walked the few blocks from his apartment to
the nearest branch of the US District Court in Seattle and sued
Autodesk for $10 million -- and did so without benefit of legal
counsel.
The official reply from Autodesk is not surprising, given
that public companies rarely comment on lawsuits, especially in
their early stages. “We are aware of the complaint and are
looking into allegations made in the complaint,” says Caroline
Kawashima, director of corporate communications for Autodesk
Worldwide Marketing. “We will respond to the complaint in due
course.”
Vernor bases his case on three points. As he elaborated in an
email to me:
- The first sale doctrine is not a right that can be
given up under contract. Congress never intended that a
copyright owner would be able to enclose a statement with
their product that would supersede copyright law. When we
give up a right we get to make a choice and we also get
something in exchange. You might give up the right to remain
silent while being arrested in order to give the police some
additional information that would show you are not guilty.
When we see a new doctor we give up our right to privacy so
the new doctor can see your medical records from your old
Doctor in order to give you better medical care.
- This contract is inside a shrink-wrapped box and
worded that by opening the box you agree to the terms of the
contract. This is not a valid contract. A contract requires
an agreement. This is imposing additional terms after the
sale. I do not have a contract with Autodesk. I do not agree
to give up any rights.
- Autodesk claims they do have a contract. The Digital
Millennium Copyright Act can only be used to enforce
copyright. It cannot be used to enforce a contract dispute.
It is illegal and was done under penalty of perjury.
Vernor mentions the Digital Millennium Copyright Act (DMCA)
because eBay cites it as the reason for the VeRO program that
vendors like Autodesk use to have auctions closed. Vernor claims
Autodesk is using a copyright law to protest a violation of a
contract, something outside the scope of the DMCA.
Read more...
The
full article is available for a fee at
