3D CAD NEWS

Yesterday’s news that nonprofit advocate Public Citizen is providing eBay seller Timothy S. Vernor an attorney for his federal lawsuit against Autodesk sends a subtle but important message. Vernor is no longer in it for the money.

Perhaps still available, but no longer the only reason for the journey.

Public Citizen has identified misuse of eBay’s Verified Rights Owners (VeRO) program as a key advocacy agenda item for 2007. It has already come to the aid of two other eBay sellers who were booted off eBay due to complaints from vendors.

Public Citizen is not interested in getting a quick settlement for Vernor. They want precedent. They believe vendors are taking unfair advantage of the Digital Millennium Copyright Act, wielding enormous control over the rights of average consumers far in excess of settled law regarding copyright law and related notions of first sale and fair use.

If only shutting someone up with a cash settlement were easy.

Public Citizen sought Vernor, not the other way around. Last week Vernor told me that if he should suddenly disappear or refuse to answer my calls, it was because he had just accepted a generous settlement from The Big A and a stifling gag order to match.

Vernor will have trouble passing an airport metal scan if he accepts hush money from The Big A.

If this is poker game, Vernon has already raised his bet before Autodesk has had a chance to look at their cards. I’ll be seeing a few hands from The Big A next week at a little sorrier they are sponsoring for the media. Not likely I’ll get comments for publication about Mr. Vernor, but you never know.

One more thing. That little website caled Slashdot continues to follow this case, by linking to a sibling Engineering Automation Network publication. Slashdot readers love to comment on the issues. It seems that Vernor’s new attorney was a programmer at Microsoft before becoming a lawyer. A Slashdotter asked how this guy had managed to sell his soul twice.

Live image of the second time one sells one’s soul to the devil. The first time is more of a lease.

eBay seller Timothy S. Vernor gives no ground in a video interview today at CADCAMNETtv. They may be large software company with a large team of lawyers, Vernor says, but “The biggest thing going for me is that I know I’m right … the law is on my side. … I really do expect them to propose a settlement soon.”

Timothy S. Vernor, aka HappyHourComics, remains poised and confident.

Vernor’s case is based on the legal principle known as the First Sale Doctrine; the Wikipedia entry linked to says it is not an area of settled law when it comes to computer software.

One of the CAD industry’s leading experts on software licensing issues, former Open Design Alliance executive director Evan Yares, thinks Vernor has a pretty good case; read his article “Old Copies of AutoCAD” for details.

Former software arms merchant (just ask Carl Bass) Evan Yares thinks Vernor might have a case.

The complete text of Vernor’s complaint against Autodesk, as filed with the US District Court in Seattle, is now available at AECnews.

You can watch the complete interview with Vernor, conducted via Skype video, at CCNtv.

Oh, and don’t get to excited about Kera Cauthorn’s opening line — a skirt is not pants.

–RSN

The story of the eBay seller who is taking Autodesk to federal court seems to have touched a raw nerve. Over at AECnews, (which published the first news) the comments are coming in fast and furious.

Timothy S. Vernor v. Autodesk

The comments range from support for Autodesk to the bold suggestion that people should use pirated software.

Another unlicensed AutoCAD user.

Most readers who reply seem to be venting pent-up frustration. One points out that a $4,000 copy of AutoCAD has cost his engineering firm $40,000 over the years, when you add up all the upgrades, third-party software, training and support.

Autodesk may be the 2D standard, but no one can accuse it of winning awards for user-friendly licensing agreements. Perhaps Vernor is doing a public service in bringing such frustrations to a US District Court.

If you want to hear from Don Quixote himself, CADCAMNETtv will have an interview with Vernor in its next edition, which goes live Monday, September 17. You’ll hear him say, “I have no fear of Autodesk because I am right.” You can tell he’s never tried to re-order a drawing to plot faster.

UPDATE: No wonder the AECnews server can boil water today — Slashdot, TechDirt, BoingBoing and other tech news sites have all linked to the original AECnews piece. The PR team at Autodesk is probably combing through their Rolodex for a hit man even as we speak.

 

 

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.