A Seattle man is suing Autodesk for abusing the Digital Millennium Copyright Act in an attempt to restrict the resale of its software. The plaintiff, Tim Vernor, alleges that Autodesk has repeatedly sent copyright infringement notices to eBay, where he has tried to sell legal copies of Autodesk software, because the company does not want the used copies to compete with new sales of the software.
According to a copy of the complaint seen by Ars Technica, Autodesk began sending copyright infringement notices to eBay in May of 2005. He says that Autodesk never took the appropriate legal action to prevent the items from being relisted and instead continued to send DMCA notices to have the items removed. After at least five incidents of being reported to eBay for copyright infringement, Vernor's eBay account—where he was a powerseller—was disabled, which he says caused him to lose revenue from potential sales.
Autodesk attorney Andrew Mackay informed Vernor that the reason the company sent the notices was because the EULA on the software stated that it could not be resold and that Vernor did not have the liberty to transfer the software license to anyone else. Vernor argues, however, that the doctrine of first sale—a law that states that a customer can sell or give away a legally obtained copy of something once it has been purchased, without the permission of the copyright holder—cannot be signed away in a EULA. He adds to this the fact that Autodesk's contract states that, by opening the box to the software, the purchaser agrees to the listed terms. One problem: the contract is shrink-wrapped and located inside the box, and therefore the purchaser is not able to know the terms before opening the software.
