The Autodesk case makes sampling legal

David Heath
Saturday, 24 May 2008 17:21

Business IT - Technology

The music industry is in deep dog-doo.  They just haven’t figured out which breed the dog is.  Or where it went!

Here’s a conundrum.  The US courts have said (in Autodesk vs Vernor), that despite any agreed or implied contract between vendor and purchaser stating that the copyrighted material is licensed, this is not true.  According to submissions to the court, which were accepted by the presiding judge, everything the vendor says about the transaction makes it very clear that there is a sale, not a license.

The courts pointed to a number of important components in the agreement between Autodesk and any purchaser of their product.

Despite the shrink-wrap license claiming that the software was licensed to the purchaser, the following was observed:

1. All references to the transaction referred to ‘purchase.’

2. The entire payment was made up-front – surely a license would involve continued payments.

3. Autodesk’s own website referred to a variety of “purchase options” and alluded to “buying on-line.”

4. Even more damning, a reseller’s website offered a choice between “buying” and “leasing” the software, where leasing clearly suggested regular payments.

The ruling of the judge was that there exists a genuine sale occurring between Autodesk and the purchaser.  Any reference to the transaction being a license was simply not borne out by either the facts of the transaction or the attitude of the vendor.  At least one commentator made the (very obvious) duck analogy.

This means that DCMA does not apply. 

Ouch! 

Further, if DCMA doesn’t apply, a purchaser is free to disassemble, reverse engineer, re-use as they see fit. 

Double ouch!!

For the various parts of the recording industry, this important, no, this is critical.