posted by Thom Holwerda on Thu 1st Oct 2009 19:04 UTC
IconYesterday morning, we ran an item on the Autodesk case, but we (as in: me) got all confused about what exactly was going on. As it turns out, I was right from the start; despite my update to the item, the case was not resolved. The link in the update referred to an earlier stage of the legal ramblings. However, we now have a real conclusion in this case - and once again, Autodesk lost: software is sold, not licensed. Note: Thanks to Brian W. Carver from Cyberlaw Cases for clearing everything up via email. Much appreciated!

What took place Tuesday was a hearing on the summary judgement motion. Here, parties put forward the undisputed facts, after which it is the judge's job to apply the law on those undisputed facts (thanks for the explanation, Brian). The judge can then side with either of the two parties, or, if the judge believes there are still disputed material facts, let it go to trial.

After hearing the undisputed facts, judge Richard A. Jones has sided with Vernor, more or less slapping Autodesk on the wrist. Judge Jones points to both the First Sale Doctrine and the Reproduction Exception. The first Sale Doctrine dictates that owners of copyrighted material may resell this material, despite the monopoly copyright holders have over said material. The Reproduction Exception states that owners of software may make any copies necessary to use the program. Without the latter, you would be unable to run software without breaking copyright law.

The judge further states the Vernor is indeed the owner of the copies of the AutoCAD software he was selling on eBay. The judge obviously reiterated that while Autodesk owns the copyright to AutoCAD, Vernor owns the copies.

The judge also addressed some of the concerns raised by Autodesk about what would happen if Autodesk lost. "Autodesk's suggestion that consumers will be harmed by rising retail prices if software producers compensate for the resale market does not address the concomitant price benefit in the form of reduced resale prices," the judge writes, "Although Autodesk would no doubt prefer that consumers' money reaches its pockets, that preference is not a basis for policy."

Autodesk also claimed that Vernor's actions constitute piracy. The judge found this claim "unconvincing". "Mr. Vernor's sales of AutoCAD packages promote piracy no more so than Autodesk's sales of the same packages," the judge states, "Piracy depends on the number of people willing to engage in piracy, and a pirate is presumably just as happy to unlawfully duplicate software purchased directly from Autodesk as he is to copy software purchased from a reseller like Mr. Vernor."

Autodesk can still appeal the case, but with yet another slam-dunk loss in court, it might just be that they're going to give up.

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