In February 2009, I ran some polls here that are relevant to the discussion regarding the US court system’s most recent backflip in the Vernor v. Autodesk legal saga. Here is a reminder of the results.
In April 2009, I ran another set of polls that are also relevant, as they provide an indication of your attitude to license agreements. Here are those results.
If you voted in these polls last year, have your opinions changed in the meantime?
As I have stated before, I believe Autodesk to be in the right (morally, not legally) in its battle to prevent Vernor’s resale of old, upgraded copies of Release 14. In the latest installment, Autodesk has won its appeal to the 9th Circuit Court of Appeals. There will be be further legal moves yet, but Vernor’s chances of winning this case are now more slender. So the right side has won (at this stage). I should be happy, right?
Wrong. Although I think the latest court to look at this has picked the right side, it has done so for entirely the wrong reasons. (Again, morally wrong, not legally. I have no qualifications on legal matters, but I can spot an injustice a mile off). In a diabolical, dangerous, far-reaching decision, it has concluded that the doctrine of First Sale does not exist at all for products where the copyright owner merely claims not to sell its products, but rather to license them.
So all those programs, games, maybe even CDs, DVDs, books etc. you have at home and thought you owned? How about that laptop with its pre-installed Windows? Or that iThing with its iOs? If you’re in the jurisdiction covered by this ruling, you quite possibly now don’t own them at all. Check out the fine print on each of those items; if it includes the magic word “license”, then you may not legally own it, or be allowed to sell it if you no longer need it. If you’re not outraged by this attack on your private property rights, you should be.
What’s more, the Court ruling explicitly rewards companies for making the “license” terms as ridiculously restrictive as they can:
We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.
One of the Autodesk EULA’s more unconscionable and unenforceable restrictions, that of only being able to use the software within a certain geographical region, wasn’t used to point out the unreasonableness of Autodesk’s claimed power over its customers. Instead, it was actually used by the court to help justify its decision!
Amazingly, this ludicrous outcome wasn’t decided in ignorance. The court carefully considered the effects this decision would likely have, but apparently for reasons of legal nicety, decided to go ahead anyway. Common sense and justice be damned, a convoluted and narrow interpretation of partially-relevant previous decisions just had to rule the day.
We can only hope that this case is reviewed and overthrown (again). While such a revised outcome might be unfortunate in terms of failing to right a wrong (Vernor’s sale of already-upgraded software), that would be much preferable to the terrible damage that the 9th Circuit’s decision has inflicted on the people it is supposed to serve. I’m only glad I’m not one of those people.
Other commentary:
EFF: “Magic Words” Trump User Rights: Ninth Circuit Ruling in Vernor v. Autodesk
Wired: Guess What, You Don’t Own That Software You Bought
Techdirt: Appeals Court Destroys First Sale; You Don’t Own Your Software Anymore
ars technica: No, you don’t own it: Court upholds EULAs, threatens digital resale
Lawgarithms: In Autodesk case, 9th Circuit missed better reason to bar resales
Public Citizen: Ninth Circuit says consumers may not own their software
Don’t get too excited, because I’m sure Autodesk will appeal, but as reported at Owen Wengerd’s CAD/Court, Vernor has won the right to resell his used copies of AutoCAD. While this is seen by some as a victory for customers, it isn’t. This doesn’t open up a brave new world in which we are allowed to sell the software we buy once we’re finished with it. If it had, I would be rejoicing as loud as anybody, because Autodesk’s ban on software transfers is an unconscionable restriction and deserves to die. But that’s not what this decision means. There are specific and paradoxical circumstances here, which allowed Vernor to win this case despite being morally wrong in my view, but will not benefit legitimate software users.
Vernor won (for now, and in one jurisdiction) because the court found he was not a party to the EULA. He didn’t read it, he didn’t click on anything to indicate his agreement to it, nothing. He just bought a bunch of books and discs and wanted to sell them on eBay. The fact that the item being sold is a remnant from software that had already been upgraded was not considered relevant. Neither was the fact that Autodesk is not obliged to provide the buyer of the discs with the codes they will need to make the software work. The upshot is that this decision will allow a small number of people to buy and sell useless discs. What about the buyers of those discs who may not know they are useless until too late? Caveat emptor, I guess. Some other court can sort out that mess.
I agree with Ralph Grabowski that “software should be no different than any other consumer good: buy it, use it, resell it, or toss it”. I’d love to see Autodesk and other vendors forced to support a legitimate used software resale market (as they once did in pre-eBay days), but this decision won’t make that happen. It won’t help customers at all. If your firm has shrunk a bit and you have some spare licenses, you still can’t sell them because you are a party to the EULA (probably, although this area is still a bit fuzzy). But take heart! If you go bust, your creditors may be able to slip any discs left over from your upgrade history into a garage sale and hope that Mr. Vernor drops by. Mr. Vernor will be allowed to sell them, and the new buyers will be allowed to put them on their shelves and look at them.
Is that really a win for customers? I don’t think so.
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.