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.

Vernor's case is not the first of its kind. The sale of first doctrine has come into question several times in recent years, with the courts generally coming down on the side of the first sale doctrine. A California judge ruled in 2001 that Adobe's EULA did not apply to a businessman who bought bundled Adobe software and resold the individual components, because "the circumstances surrounding the transaction strongly suggest that the transaction is in fact a sale rather than a license." Another case was filed recently by Universal Music Group against a California man for selling promotional CDs on eBay.

The outcomes of both UMG's suit and Vernor's case will carry important implications for the doctrine of first sale and shrink-wrapped EULAs. It also carries implications for abusing the DMCA—this case is ultimately over a breach of contract, not copyright violations. One of the reasons companies misuse the DMCA and its takedown letters is that the tools can quickly accomplish what they want to have happen; stuff they don't like generally disappears from a web site once the DMCA is invoked, properly or not. When the other option is slogging slowly through the court system, takedown letters look like an excellent alternative.

If Vernor wins, it would strike a blow to companies that argue that consumers only buy a license to use the software, not the software itself. Vernor is asking for $7,000 in lost sales, $350 in legal fees, and $10 million in punitive damages.

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