For seven years a soft-spoken Seattle resident by the name of Timothy S. Vernor made a decent living selling stuff on eBay. Mostly he sold vintage comic books, but also whatever else he could get cheap and pass along to a waiting market.
Timothy S. Vernor, eBay Reseller
Vernor has over 10,000 positive comments and a 99+% positive rating. Then he listed a copy of AutoCAD Release 14. That was the beginning of the nightmare for Timothy Vernor.
Autodesk filed a notice with eBay claiming Vernor violated their rights by trying to sell Autodesk software at auction. It is eBay policy to remove a listing first and ask questions later when a software company protests a listing. Vernor appealed and was relisted. He did this five times, for five different copies of R14 that came into his possession. Each time Autodesk appealed, the auction was pulled, Vernor appealed, and the auction was reinstated. After the fifth time, eBay suspended his seller account, leaving him without access to what had become his sole source of livelihood.
It took Vernor 30 days to convince eBay he was not a criminal and to have his seller account reinstated. Most people would have decided to stay far far away from anything with the word “Autodesk” on it at this point. But Timothy Vernor is not most people. He believes the law is on his side and that Autodesk is behaving badly. After studying things out on his own, Vernor walked the few blocks from his apartment to the nearest branch of the US District Court and sued Autodesk. Without a lawyer.
It took 60 days, Vernor told 3D CAD News, for the court “to decide I wasn’t a wacko” and allow Vernor’s case to move forward. Autodesk has now been sent a summons and has 60 days to respond.
Why does Mr. Vernor think he has a case against the world’s biggest CAD company? Here are his words, from a press release he wrote and sent out to various media outlets he found by doing some research:
A lawsuit has been filed in Federal Court (US District Court for the Western Washington District C07-1189 JLR) that alleges Autodesk, Inc., maker of the industry standard AutoCAD software and their attorney Andrew S. Mackay have devised an illegal scheme to have used copies of their software removed from the eBay site using the Digital Millennium Copyright Act.
Autodesk attorney Andrew S. Mackey scours Seattle looking for Timothy Vernor.
The law passed in 1998 was designed to give intellectual property rights owners a way to have content removed from the Internet that violates copyright law. An example would be a television show uploaded to YouTube without permission from the production company. The right to sell an item that has been legally purchased is protected under copyright law. The first sale doctrine allows an individual to transfer (i.e. sell, giveaway etc.) a lawfully made copy of an item without permission once it has been obtained. The doctrine has been part of US law since the Supreme Court recognized it in 1908 and covers everything from books and DVDs to clothing and automobiles.
Autodesk is using the Digital Millennium Copyright Act to have legal copies of their software removed from eBay so they can sell more new copies. The latest version of AutoCAD software is around $4,000 a copy. Autodesk's lawyer, Andrew S. Mackay states "AutoCAD software is licensed not sold and that license is not transferable." AutoCAD software is available for purchase at most major software retailers. There is no indication your purchase would be different from any other until you get it home and open the box. There is a piece of paper tucked inside that says it is a licensing agreement with the statement "by opening the sealed software packet(s), you agree to be bound by the terms and conditions of this license agreement." This is called a "shrink wrap" contract. It cannot be read until you open the package which according to the contract constitutes agreement. US courts have not held a "shrink wrap" contract to be valid. Furthermore the Digital Millennium Copyright Act is only intended to enforce copyright violations, not breach of contract.
Vernor says his lawsuit is about more than simply teaching Autodesk a lesson, although that’s part of it. “These people didn’t take me seriously,” Vernor told us in an interview. “But the real reason is that this lawsuit is about eBay and intellectual property.” Vernor says Autodesk is not the only company to demand that eBay remove one of his auctions. Monster Cable, various textbook publishers and even name-brand apparel companies have done it as well. Vernor sees it all as egregious misapplications of laws regarding the ability to protect intellectual property. “It is too easy for a company to say an auction infringes on its intellectual property; anyone can file such a complaint.”
It seems Vernor is not alone in thinking the Digital Millennium Copyright Act is being misused. The Electronic Freedom Foundation has a long article detailing ways it believes the DMCA is being misused, including the kind of software reselling Vernor attempted.
Faithful CAD scribe Owen Wengerd has posted access to the court documents in this case; head to http://www.adskvoda.com/NewsFeed/tabid/53/EntryID/47/Default.aspx if you want the gory details.
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