So how does one know when it's a "license" or a "sale"? (In other cases, courts have ruled that simply calling something a "license" doesn't make it so.) In today's ruling, the judges laid out a test: In its view, US "first sale" protections don't apply to Vernor, because he didn't buy the software from a legitimate "owner." That, in turn, is because the architecture firm had only "licensed" the software, and that license could indeed allow a software company to prevent resale, lending, and even removal from the Western Hemisphere. Vernor, on the verge of getting banned from eBay, sued Autodesk and asked the court to declare his sales legal.Ī federal court did so in 2008, but Autodesk appealed, and today the appeals court reversed that earlier decision. But after putting them on eBay, Autodesk repeatedly tried to shut down his sales.
Vernor believed he was in the clear to resell them, as he had not agreed to any license. The copies Vernor picked up at the architect's sale were old copies that had not been destroyed as required. Finally, if you upgraded to a new version, the old version had to be destroyed. Further, a licensee could not rent, lease, or sell the software to anyone else you couldn't even physically transfer the discs out of the Western Hemisphere (!). This agreement made clear that AutoCAD was merely licensed, never sold, and that one's license was non-transferable. Autodesk, the software's developer, forced all users to accept an agreement before using AutoCAD. Vernor had picked up some old copies of AutoCAD from an architect's office sale, complete with their serial numbers, and he put them up on eBay noting that they were not currently installed on any computer. Autodesk, in which Timothy Vernor made his living from selling items (including software) on eBay.
Could this mean the end of the resale market for all digital content? Yup. The US Court of Appeals for the Ninth Circuit ruled on a long-standing case involving used software on eBay, and it came to an important decision: if a company says you don't have the right to resell a program, you don't have that right.
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