Well, there’s a statement I wasn’t expecting to make. Let me preface these comments with a disclaimer. I have no legal qualifications whatsoever. I make no claims of knowing who is legally right in this David v. Goliath legal battle; that’s for the courts to decide. When I make the statement that I think Autodesk is right, I don’t mean legally right, I mean morally right.
I have been following this fight with interest, but only in a half-baked way, third-hand via commentators (like myself, now). Based on my skimming of that commentary, my natural inclination to support the underdog, and my general dislike of of Autodesk’s previous and current legal adventures, I had been of the firm but privately held opinion that Vernor was right and Autodesk was wrong.
Today, after noting that new filings had been made, I had a proper look at some (not all) of the actual court documents themselves (thanks to Owen Wengerd’s CAD/Court), and surprised myself by coming to quite the opposite conclusion. I am now convinced that I was totally wrong.*
Until today, I was hoping that the court would support Vernor’s assertion that the First Sale doctrine applies in this case. Why? Because I feel that Autodesk is morally wrong in attempting to prevent the transfer of its software from one party to another.** At one time, Autodesk allowed AutoCAD to be resold (despite the EULA of the time saying that it wasn’t allowed) and indeed actively supported the transfer process. I felt at the time that Autodesk’s introduction of this restriction of a customer’s ability to resell AutoCAD was morally wrong. I still feel that way.
I also feel Autodesk is morally wrong in geographically restricting the sale of its software, and in several other areas of its EULA. I would be quite happy to have a court find that Autodesk is legally wrong in those areas, too. Despite that, I feel that it would be A Bad Thing if Vernor won in this case.
Why? Because Vernor was selling software that effectively didn’t exist. He was selling used copies of Release 14, when those copies had already been upgraded to AutoCAD 2000. To me, that’s clearly morally wrong.*** If the court finds that First Sale applies here, then that opens the floodgates to allow anyone to sell old copies of any software that has been upgraded, and keep using the new stuff. I really don’t think that would be good for anyone.
Those of you who have been upgrading AutoCAD for the last 25 years, I hope you held on to all your old copies, because you could be sitting on a gold mine. Of course, unless the court is going to compel Autodesk to acknowledge all these new “owners” of AutoCAD and support them with the various magic numbers required to keep them alive, there are going to be a lot of disappointed buyers around, the word will get around, and the bottom will quickly drop out of the market.
* This is not a first, I assure you.
** It has been stated elsewhere that Autodesk can actually be persuaded to allow the transfer of its software outside the usual restricted areas of merged companies, deceased estates and so on. This may be so, but it’s not something I would rely on.
*** This is a quite different moral proposition from somebody continuing to use an old version of software after upgrading, alongside the new version, on the same computer. That’s something I find entirely morally acceptable, whatever any EULA may stipulate.