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Timothy Vernor, a regular eBay seller legally obtained a copy of AutoCAD (reportedly from a local architectural firm) and sought to sell it via his eBay account. Autodesk lodged a complaint with eBay and had, in accordance with the Digital Millennium Copyright Act (DMCA), a takedown notice issued which resulted in Vernor's account being terminated.
Vernor responded by taking Autodesk to court alleging firstly that he was indeed entitled to sell second-hand copies of the software and secondly that his primary source of income was severely interrupted by Autodesk's complaints.
This case does not hinge upon 'illegal copies.' Neither party made any allegation of these being non-original, or of copies being retained by any user of the software.
Furthermore, the principle of "First Sale," which insists that the copyright owner has control only of the first sale of an item (generally applied to books) and cannot control later transactions is only relevant to US jurisdictions; Australia has no similar expressed right, although such a right is certainly commonly assumed throughout the country. Were this not true, why has there never been a complaint by copyright holders over jumble sales and garage sales with piles of books, VHS tapes etc for sale?
Eighteen months ago, reports of the preliminary judgement made relatively broad interpretations of the effect of this ruling. These interpretations may or may not turn out to be true, but in the short term The Honourable Richard A Jones has ruled that indeed Autodesk 'sells' their software to customers and thus "First Sale" applies.
This judgement will probably give rise to a number of outcomes.
Firstly, the lawyers who write software agreements will suddenly find they have more work than they can cope with – making sure that this can't happen from now on.
Secondly, it will definitely be appealed, but considering that this final judgement differs very little from the interim judgement from May 2008, this is unlikely to succeed.
Finally it will give strength to those who support the argument (first proposed by Borland in the mid 1980s) that the software be treated, for copyright / licensing purposes "just like a book."
