Are you entitled to resell software on eBay?

By Mark O’Neill

A remarkable legal battle is brewing over whether someone is entitled or not to resell used software. The case could bring about a whole new interpretation of the Digital Millennium Copyright Act.

This case involves an eBay seller called Timothy Vernor and his repeated run-ins with a company called Autodesk who produces a software program called AutoCAD. Vernor has repeatedly put legal used copies of the software program on eBay, copies that he has found at places such as garage sales.

But everytime Vernor has put AutoCAD auctions on eBay, Autodesk has issued DMCA takedown notices to eBay demanding that they be taken down for copyright violation reasons. These takedown notices ultimately failed, but eBay, seeing so many takedown notices coming their way, decided that something didn’t smell right and ultimately banned Vernor’s seller account. For that, Vernor then sued Autodesk.

Now, wait a sec. Vernor sued Autodesk? Wouldn’t the right thing to do would be to take the complaint to eBay? I mean, they’re the ones that shut the account down. Vernor was successfully winning the fight against Autodesk but it was eBay who was the bully on the block at the end of the day. So where is eBay in this complaint?

The complaint basically boils down to this – Autodesk claims that Vernor does not have the right to resell the used software because when you buy the software, you don’t actually buy the actual software, you’re only buying a license to use the software (nice wording eh?). Therefore the seller has no right of first sale. But the federal judge in the case said in a ruling that this wasn’t necessarily true. He cited the right of first sale and ruled the case can proceed.

If the case goes to trial and Vernor wins, expect some very interesting legal precedents to come out of this.

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