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Company Uses DMCA To Take Down Second-Hand Software

Soulskill posted about 5 years ago | from the what-i-sold-you-is-still-mine dept.

Software 488

dreemteem writes "A judge Tuesday heard arguments in a dispute over software sales that could potentially have repercussions on the secondhand sale of virtually any copyrighted material. The suit was filed by Timothy Vernor, a seller on eBay, after Autodesk, citing the Digital Millennium Copyright Act, asked eBay to remove some of its software products that Vernor had listed for sale there, and later to ban him from the site. Vernor had not illegally copied the software but was selling legitimate CDs of the products secondhand. For that reason, he argued, he was not infringing Autodesk's copyright. Autodesk countered that because it licenses the software, rather than selling it outright, a licensee does not have the right to resell its products."

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Autodesk will lose (5, Interesting)

TheSpoom (715771) | about 5 years ago | (#29594395)

Vernor absolutely has the right to resell his CD, due to a well-known section of copyright law known as first-sale doctrine [wikipedia.org] . If you legally possess a copyrighted work, you can resell it, as long as a new copy is not created. I don't think this case will last very long.

Now, the DMCA would allow Autodesk to, say, validate a CD key online once only and then deny future installs on other hardware, since any attempt to get past that would be a circumvention attempt [wikipedia.org] prohibited by the DMCA. But it's not Vernor's fault that Autodesk didn't do that. (Of course, just maybe they know that if they did, customers would be more reluctant to buy their software since most people don't like DRM.)

I am not a laywer.

Re:Autodesk will lose (5, Interesting)

commodore64_love (1445365) | about 5 years ago | (#29594457)

I had a stupid shithead company do that to me when I tried to sell my DVD of "Hunt for Red October". For some reason they kept telling Ebay I was selling an illegal copy, even though it was clearly storebought. Ebay stupidly listens to these companies, so I eventually moved my selling over to Amazon. Way to shoot yourself in the foot ebay.

Re:Autodesk will lose (5, Insightful)

TheSpoom (715771) | about 5 years ago | (#29594503)

Yeah, unfortunately eBay will pretty much always follow through on a requested auction takedown from a content producer. They just don't want to be involved in their lawsuit.

Re:Autodesk will lose (-1)

Anonymous Coward | about 5 years ago | (#29594585)

good.
Otherwise the place would be 99% full of copied, stolen software.You would think that software developers here would see what a bad thing that would be for the entire industry.

Either you limit resale, or you limit copying.
Or you all get jobs as bricklayers.
Choose.

Re:Autodesk will lose (0)

Anonymous Coward | about 5 years ago | (#29594699)

That's why Amazon, who allow and indeed practically encourage second hand sales of DVDs, are just SWAMPED with low quality pirated copies, right?

I can't decide if I'd prefer to mod you -1 Wrong, or -1 Asshole. Unfortunately neither of those exist, so all I can do is reply wishing that they did.

Re:Autodesk will lose (5, Funny)

TheSpoom (715771) | about 5 years ago | (#29594729)

Hey, can I copy your comment to use as an example on the Wikipedia false dichotomy [wikipedia.org] page? It's a really good one.

Re:Autodesk will lose (1)

elrous0 (869638) | about 5 years ago | (#29594757)

In that case, ebay should start a program where established sellers of legitimate software could sign up and be whitelisted, while still excluding the pirates. That would be fair, as opposed to the ridiculous blanket ban on selling ALL used PC software they seem to have now.

Re:Autodesk will lose (5, Insightful)

commodore64_love (1445365) | about 5 years ago | (#29595179)

Anonymous shithead wrote:

good.
Otherwise the place would be 99% full of copied, stolen software.You would think that software developers here would see what a bad thing that would be for the entire industry.
Either you limit resale, or you limit copying.
Or you all get jobs as bricklayers.
Choose.

I'm sorry. What??? How is it acceptable that I was not able to sell my used DVD of "Hunt for Red October" due to takedowns? Sorry Mr. Anonymous but there is simply NO way you can justify that act. I have the inalienable *right* to sell my old unwanted CDs, DVD, or disks.

Re:Autodesk will lose (5, Funny)

Xtravar (725372) | about 5 years ago | (#29594739)

As someone in another forum put it so eloquently for me when ebay recently banned a completely legal herbal product:

ebay's like a really bad and inefficient parent. We weren't really doing anything all that bad, but ebay came home with a bad attitude and probably a little drunk. 15 minutes of bitching about the Jews and now somehow we're grounded from buying and selling X on ebay.

And then a week later ebay wakes up and forgets its hangover, remembers yelling about something, but completely forgot about X. Randomly sometimes ebay will smack an auction for back sass, then all the other auctions hide and change go under assumed names because ebay's so drunk it cant figure out the simple euphemisms.

Re:Autodesk will lose (5, Informative)

samkass (174571) | about 5 years ago | (#29594785)

Ebay is legally required to take it down if they are served with a DMCA notice [chillingeffects.org] . However, if you file a counter-notice [chillingeffects.org] , they are correspondingly legally required to put it back up unless the Copyright owner files suit against you.

Re:Autodesk will lose (3, Informative)

Entrope (68843) | about 5 years ago | (#29595075)

Those rules only apply where the hosting company actually serves copies of the allegedly infringing content -- that is, when someone has Ebay serving up copyrighted text, images, video or the like. It doesn't apply for advertisements or offers for sale.

Re:Autodesk will lose (1)

idontgno (624372) | about 5 years ago | (#29595243)

The rules also apply, de facto, if you're too cowardly, stupid, or lazy to actually examine the take-down request and the subject matter in play.

Think of it as risk mitigation in the extreme.

Re:Autodesk will lose (2, Insightful)

dkleinsc (563838) | about 5 years ago | (#29594597)

Autodesk would probably lose due to the first-sale doctrine if this actually gets anywhere near a courtroom. As it is, the cost of Vernor proving that he has the right to resell his CD far outweighs the price he could get for it, so Autodesk is banking that he won't fight it. The really unpleasant part of the DMCA is that it puts the burden of proof on the party who wants to have the material up on the web rather than the party who wants it removed.

As with the parent, I'm not a lawyer, and this is not legal advice.

Re:Autodesk will lose (3, Interesting)

Brian Gordon (987471) | about 5 years ago | (#29594715)

I thought that if you just send them a counter-notification then the burden of proof is on the party who wants it removed.

Re:Autodesk will lose (1)

log0n (18224) | about 5 years ago | (#29595019)

We pontificate all the time about shoulda/coulda/woulda regarding YRO and freedom online and such. But really, most people don't much about the DMCA let alone how to challenge or defend against it. Not to mention most people get the shit scared out of them anytime they are mailed (snail mail = real life = anything to avoid being screwed) anything by a lawyer.

Re:Autodesk will lose (4, Informative)

commodore64_love (1445365) | about 5 years ago | (#29594663)

I bet Autodesk will argue this precedent:

"In a more recent case involving software EULAs and first-sale rights, Davidson & Associates v. Internet Gateway Inc (2004), the first sale reasoning of the Softman court was challenged, with the court ruling "The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." However, the point was moot as the court found the plaintiff's EULA, which prohibited resale, was binding on the defendants because "The defendants .. expressly consented to the terms of the EULA and Terms of Use by clicking 'I Agree' and 'Agree.'" - from wikipedia

Re:Autodesk will lose (4, Interesting)

TheSpoom (715771) | about 5 years ago | (#29594839)

There's apparently a bunch of confusion in the courts here. There are other cases on the same page (the first-sale doctrine [wikipedia.org] page) that ended with first-sale being upheld even though the EULA said the user had to give up that right.

Personally, I think that software publishers should not be able to legally disallow first-sale like that. If they could, the same could be done with, for example, books, and resale could be completely prohibited just by saying "this book is licensed not sold; your license prohibits you from reselling the book."

Wouldn't that be a boon for book publishers?

RE: Licensed books (2, Insightful)

denis-The-menace (471988) | about 5 years ago | (#29595005)

This will happen if it hasn't already happened.
What definitely hasn't happened is the author or publisher having seen the "licensed" book being resold and brought it to court.

Once that happens all hell will break lose.

If games and software are copyrighted because they are expression of ideas, and *they* can be *licensed*;
there is nothing preventing books from getting the same "first-sale doctrine" circumventing license treatment.

Re:Autodesk will lose (5, Informative)

QuoteMstr (55051) | about 5 years ago | (#29595175)

That's where the First Sale Doctrine comes from: book publishers tried to slap EULAs on books around the turn of the 20th century that, among other things, prohibited resale. The courts found that these EULAs are non-binding.

We've already been through this bullshit once before, or at least our ancestors have.

Re:Autodesk will lose (5, Informative)

Anonymous Coward | about 5 years ago | (#29594895)

Except in this case Vernor has never installed the software, never agreed to any EULA, and never clicked any 'I Agree' button.

Re:Autodesk will lose (1)

GooberToo (74388) | about 5 years ago | (#29594969)

Mod up guys!

Re:Autodesk will lose (1)

poetmatt (793785) | about 5 years ago | (#29595251)

I don't get your point, that involves a click EULA, this guy never installed the software. Thus, let them explore that precedent, only to get it shot down as it is unrelated.

Re:Autodesk will lose (4, Interesting)

CopaceticOpus (965603) | about 5 years ago | (#29594805)

Now, the DMCA would allow Autodesk to, say, validate a CD key online once only and then deny future installs on other hardware.

I am curious why this is not also a violation of the first sale doctrine. If I am allowed by law to sell a copyrighted work which I have legally purchased, Autodesk should not be permitted to implement a system which takes this right away.

I would also like to know if there is any legal case to made that Sony and Microsoft should allow for some way to resell downloadable games which have been purchased on a console.

Re:Autodesk will lose (1)

GooberToo (74388) | about 5 years ago | (#29595009)

not be permitted to implement a system which takes this right away.

Especially on the basis of a non-negotiable, non-equitable contract, such as a EULA.

Re:Autodesk will lose (2, Informative)

Sloppy (14984) | about 5 years ago | (#29594849)

Vernor absolutely has the right to resell his CD, due to a well-known section of copyright law known as first-sale doctrine. If you legally possess a copyrighted work, you can resell it, as long as a new copy is not created.

I hope you're right, but I'm not so sure. That "well-established doctrine" predates the Blizzard decision. The Blizzard decision asserted that the first sale never happened. How can you resell something that you never bought?

Of course, the truth is that the Blizzard decision was just plain wrong and the judge simply didn't think about what he was doing. But nevertheless, that's what the court did, and lawyers are going to cite it to other judges.

Re:Autodesk will lose (1)

log0n (18224) | about 5 years ago | (#29595145)

All of this would sort itself out pretty cleanly if first sale doctrine focused on the transfer of currency/wealth rather than the good itself. If you paid (or otherwise exchanged value, ie gift), a sale has taken place.

Most of the time I think ambiguously worded law is a good thing, but certain things really should be made plain.

If they win, it's time to change the law (5, Insightful)

Anonymous Brave Guy (457657) | about 5 years ago | (#29594885)

Now, the DMCA would allow Autodesk to, say, validate a CD key online once only and then deny future installs on other hardware, since any attempt to get past that would be a circumvention attempt prohibited by the DMCA. But it's not Vernor's fault that Autodesk didn't do that. (Of course, just maybe they know that if they did, customers would be more reluctant to buy their software since most people don't like DRM.)

Unfortunately, I don't believe most consumers really appreciate the dangers of DRM yet. I'm looking forward to the day that a court case comes up where someone tries to sell on a second-hand product (software, e-book, whatever), gets told they can't because DMCA/EUCD/whatever anti-circumvention provisions are artificially blocking the sale, and then goes after the original supplier for fraud. Remember, in many jurisdictions, there is a fundamental requirement for honesty/understanding in any contract, and often there are laws specifically for one-sided cases such as where one party (the software/e-book/whatever business) had expensive lawyers write some huge long contract and a typical other party (a consumer making a purchase) could not reasonably be expected to understand all the subtle implications of the legal fine print.

Perhaps it's about time we had a balancing law that anyone selling[1] software with artificial, external barriers to use[2] must lodge a version of their software with no such barriers with some central organisation or forfeit their anti-circumvention protections entirely. The central organisation would then be free to release the unrestricted software on expiry of the copyright or in the event that a user was unable to make fair use[3] of the software and those who accepted the money/hold the rights failed to make reasonable allowance for this on request.

[1] No, you don't get to weasel out of this by claiming it's licensed, not sold. If you take money for it, consumers think it's either a sale (by default) or a rental (if there is a clear, fixed timespan attached).

[2] By "artificial, external barriers to use" I mean things like product activation and DRM schemes.

[3] Or whatever your jurisdiction calls its equivalent concept.

Re:If they win, it's time to change the law (0)

Anonymous Coward | about 5 years ago | (#29595015)

Or, maybe more effective, if a company serves a DMCA notice just to intimidate customers, shoot the whole board of directors.

My bet is that after the first two of these smack downs companies will be a bit more respectful of customer rights.

Re:Autodesk will lose (1, Interesting)

Anonymous Coward | about 5 years ago | (#29594961)

This is going to be an issue that will become more and more important. It wasn't as much of an issue in the past because the copying of music, books, etc. was not an exact replica. In the digital age when perfect digital copies can be made (MP3s), that value of a copy is the same as the original so the effort to make copies can be much more profitable. There should be a balance between the right of intellectual property creators to earn profit on their ideas but there should also exist a right of a culture to be able to have access to current ideas, trends, etc. See Code 2.0 by Lessig chapter 7 for a more insightfull view of copyright law in the digital age.

Re:Autodesk will lose (2, Interesting)

_KiTA_ (241027) | about 5 years ago | (#29595007)

Vernor absolutely has the right to resell his CD, due to a well-known section of copyright law known as first-sale doctrine [wikipedia.org] .

Except that Autodesk is claiming that they never sold him anything, they sold him the right to use it, which is an important difference. The difference is an explicit attempt to bypass consumer protections such as first-sale doctrine; hopefully the Judge sees that and throws it out.

Re:Autodesk will lose (0)

Anonymous Coward | about 5 years ago | (#29595111)

You need to take a quick read of what the first-sale doctrine actually states. While I do not believe Autodesk's argument, their point is that a "first sale" is required for the first-sale doctrine to apply. Since their software is licensed and not sold, there is no first sale and, therefore, the first-sale doctrine has no application. On the other hand, Vernor would say that while the software itself may be licensed and not sold, the CD itself was sold and the first-sale doctrine applies. However, winning that argument would protect you from situations where licensed software is not obtained on a physical medium. This is actually a very contentious legal matter and has be the basis of a number of cases that are making their way through the legal system at the moment. It comes down to whether you are going to take a literal reading of the section or if you are willing to apply the spirit of the underlying purpose of the first-sale doctrine.

Legitimate copies? (2, Funny)

oldspewey (1303305) | about 5 years ago | (#29594455)

There's legitimate software for sale on eBay?

News to me ...

And we wonder (4, Insightful)

netscan (1028690) | about 5 years ago | (#29594473)

why we're not the leaders of innovation anymore. Seriously, these guys should stop wasting time on this nonsense and innovate already. They made their money on the sale, go make something else to make more.

Re:And we wonder (0)

Anonymous Coward | about 5 years ago | (#29594577)

Who are you referring to?

Re:And we wonder (2)

netscan (1028690) | about 5 years ago | (#29594709)

Who are you referring to?

Considering it's an American company using an American law, I didn't think it was too far of a strech to assume anyone reading the comment would know I was referring to America.

Re:And we wonder (1)

IcyNeko (891749) | about 5 years ago | (#29594897)

That requires effort, whereas litigation requires no corporate effort on the whole.

Re:And we wonder (1)

commodore64_love (1445365) | about 5 years ago | (#29594965)

>>>They made their money on the sale, go make something else to make more.

"But that's too haaaard." It's easier to just keep selling the same thing over-and-over-and-over. Look at my multiple copies of the Beatles White album - one on record, one on cassette, one on CD, and a few select songs in MP3pro format that stopped working when the store went backrupt, so I had to buy them again in AAC format from iTunes. RIAA says, "The downloaders are ripping us off." Oh really??? Not from where I sit.

Anyway... Autodesk wants to do the same thing with customers buying NEW copies, not used copies off ebay.

LOSERS (-1)

Anonymous Coward | about 5 years ago | (#29594477)

Autodesk? Is it an auto? Is it an desk? Is it an auto desk? Is it an desk auto? What is an autodesk?

All losers answers or mods this!

The guys lawyer (4, Insightful)

MBGMorden (803437) | about 5 years ago | (#29594499)

What I found most refreshing about this, is that from reading TFA, the guy's (Vernor's) lawyer actually has a good grasp on this issue and was explaining it, at least to the press, using good analogies that a common person could understand.

Maybe I'm being optimistic, but I think he has a very good shot at winning this.

Re:The guys lawyer (1, Offtopic)

What'sInAName (115383) | about 5 years ago | (#29594595)

> This comment is worded exactly as intended. Any application of funny "Fixed that for you" jokes will be most welcome.

Fixed that for you!

Re:The guys lawyer (5, Informative)

Anonymous Coward | about 5 years ago | (#29594653)

I should hope so, they already won [arstechnica.com] the court case more than a year ago when AutoDesk got bitchslapped hard.

eBay is the one that needs to be slapped now. As far the AutoDesk continuing to send DMCA notices, well they need to be put in jail for harassment.

Re:The guys lawyer (4, Interesting)

TheRaven64 (641858) | about 5 years ago | (#29594869)

As I recall, there is a fixed penalty in the DMCA for sending takedown notices that you know to be illegitimate. This is usually difficult to prove, but given that they have already lost a lawsuit on the exact same issue it should be relatively easy in this case.

Re:The guys lawyer (1, Insightful)

Anonymous Coward | about 5 years ago | (#29594901)

How do we put a corporation in jail? This is exactly why corporations are NOT people. Even if a judge said so.

Re:The guys lawyer (1)

wvmarle (1070040) | about 5 years ago | (#29595033)

The only way to do that, more or less, is to sue the board or some other top manager for wilful misconduct. This is of course something that is really hard to prove, but I'm sure it has been done before.

It is indeed a problem that for punishing companies they can not be put in jail. Especially bigger companies. Fines is the only way - you could argue for forced liquidation but that would be the equivalent of the death penalty. And in case of liquidating a company would have quite some collateral damage (many people losing their jobs). Fines so high they are forced into bankruptcy have the same effect.

Re:The guys lawyer (1)

Shikaku (1129753) | about 5 years ago | (#29594857)

Did he use car analogies?

Re:The guys lawyer (0)

Anonymous Coward | about 5 years ago | (#29595025)

No, he used Library of Congress and width of a human hair examples. He's THAT good.

I hope he wins (0)

Anonymous Coward | about 5 years ago | (#29595059)

This business of denying a client his first-sale right by giving him a license rather than selling him a product has needed challenging for a very long time. Autodesk is not the only company that attempts to kill the secondhand market in this way.

This is also very popular in the comupter games world.

Think of Steam, where you have no means whatsoever of individually reselling the games you have bought.

This level of deprivation of consumer rights is injust, and should be challenged in court.

The end of the story, so far seems to be... (1)

BobMcD (601576) | about 5 years ago | (#29594543)

Beck expects the judge to rule for one party or the other, and for the loser to appeal. Early last year the judge declined a request by Autodesk to dismiss the case.

That plus the summary seems to be about all there is to know at this point.

This case is already over (4, Informative)

cookie23 (555274) | about 5 years ago | (#29594551)

Re:This case is already over (1)

Drakin020 (980931) | about 5 years ago | (#29594741)

What weird is in that link it says...

"By Timothy B. Lee | Last updated May 23, 2008 12:21 PM CT"

Re:This case is already over (1)

Tharsman (1364603) | about 5 years ago | (#29594771)

So an article from 2008 states that the guy in 2009's breaking news won the case? ... First time i hear of Computerworld UK but is their moto "One year ago in the news"?

Re:This case is already over (1)

Null Perception (914562) | about 5 years ago | (#29594823)

Perhaps the editors should update the summary. Maybe everyone can stop holding their breath for Vernor, then...

Re:This case is already over (3, Interesting)

ccady (569355) | about 5 years ago | (#29594871)

Not sure I grok the legal details, but the article you refer to is the original case, and the current article is about a hearing on how to proceed:

The two-hour hearing, in the US District Court for the Western District of Washington in Seattle, was in response to motions for summary judgement filed by both sides. The judge can now rule for Vernor or for Autodesk or send the case to trial.

Exactly (1, Insightful)

Anonymous Coward | about 5 years ago | (#29594555)

This is exactly why I do not purchase software.

And I don't pirate it (0)

Anonymous Coward | about 5 years ago | (#29594727)

After all, these P2P sites don't let you download the *license*, and since that is what you're buying, there's no lost sale in P2P sharing of their software.

Make up your minds, guys.

Is it the software you're selling (so the P2P share is a lost sale) or is it the licenses (in which case this guy is in the wrong)?

Hope they win (5, Informative)

elrous0 (869638) | about 5 years ago | (#29594583)

The fact that there is no used market is one of the reasons I left PC gaming behind several years ago. I can usually buy a used copy of a console game for a fraction of the new price, and it's saved me a fortune over the years. With PC games, there basically is no buying games used. The PC software industry has been bullying sites like ebay for years. Game publishers would no doubt like to kill the used market on console games too (that's why they're salivating so much over the prospect of going to download-only games and expansions), but so far have been stymied by technological limitations and a traditionally strong used game market for consoles. Just look in any Gamestop and you'll see a huge console section (with mostly used games) and an almost non-existent PC game section.

Why should PC games be regarded as so different? There is no reason game publishers couldn't require their software be used on one computer at a time the same as a console disc. Why should they be able to use that lame "We're not selling it, we're just licensing it" argument to stop resale of the physical software discs when movie studios and console game developers can't get away with it?

Re:Hope they win (-1, Troll)

LWATCDR (28044) | about 5 years ago | (#29594721)

Well because games are different, they are not like movies or books. I mean how many people read a book just once and then lend it to a friend or resell it. I mean have you ever heard of a used book store?
The publisher of the game only makes money on the people that buy it the first time. It is just unfair to steal their work buying a copy somebody else has already played.

So how many people will flame me without getting that I am kidding or even bothering to read this line?

Re:Hope they win (4, Funny)

Shikaku (1129753) | about 5 years ago | (#29594881)

I mean have you ever heard of a used book store?

Yeah, it's called a library.

Re:Hope they win (0, Redundant)

LWATCDR (28044) | about 5 years ago | (#29595063)

You win and thank you for playing!
Please read the last line of my post for your prize!
BTW they are also called. USED BOOK STORES and are actually really common.

Re:Hope they win (3, Informative)

GooberToo (74388) | about 5 years ago | (#29595097)

I mean have you ever heard of a used book store?

Yeah, it's called a library.

Yeah, it's called a used book store.

Re:Hope they win (1)

LazyBoot (756150) | about 5 years ago | (#29594867)

Why should PC games be regarded as so different? There is no reason game publishers couldn't require their software be used on one computer at a time the same as a console disc.

Most pc games I've seen does require you to have the disk in the pc to play, as part of the copy protection.

Re:Hope they win (1, Troll)

tsm_sf (545316) | about 5 years ago | (#29594883)

I can usually buy a used copy of a console game for a fraction of the new price

9/10ths is the fraction I usually see.

Re:Hope they win (0)

Anonymous Coward | about 5 years ago | (#29594913)

All my recent game purchases have been used games though Amazon.com...

Re:Hope they win (1)

drinkypoo (153816) | about 5 years ago | (#29594915)

With PC games, there basically is no buying games used. The PC software industry has been bullying sites like ebay for years.

They're not bullying Amazon, where you can buy a super-crapload of used PC games. I usually buy them new through Amazon though, because I buy old games and they're usually about the same price new as a good-quality used game with all the materials... because only recently have people begun buying many PC games in keepcases (from Wal/Kmart &c.) That will help bring up the market, I think. Regardless, people I know personally list their used books, games, movies, and music on Amazon and nowhere else. I suspect it is where I will go when I want to unload some of my stuff for which I have actually saved all the materials. I won't make much money, but someone else might as well enjoy them.

Re:Hope they win (1)

notamisfit (995619) | about 5 years ago | (#29594933)

IIRC, there's actually case law regarding used sales/rentals of console games as opposed to PC software. (I don't remember the details off the top of my head though).

Re:Hope they win (1)

Kamokazi (1080091) | about 5 years ago | (#29594941)

Erm...I buy used PC games all the time from Gamestop (I've also bought several titles off eBay, so not sure where this 'bullying' kicks in)...even newer titles only a few weeks old..usually run $35-$40 for new $50 games. And I don't live in any major metro area, quite the opposite. So I am guessing your local Gamestop just sucks, or you didn't look very hard. I would think larger Gamestops and the other retailers that handle used games would have even better selections.

And it's not like they are all download only...even though you can get them on Steam or other services, the vast majority of big titles are still available in boxes, including Valve's titles. I've also bought used copies of install-restricted games like Mass Effect..DRM doesn't even seem to stop used sales. The used PC Games market is there and doing just fine.

DLC is becoming more common, but this applies just as much to consoles as it does PCs..if not moreso, since the console platforms are far more closed and restrictable. In fact, thanks to the openness of the PC, in many cases you could essentially move the DLC files to a CD and sell it with the game (depending on the title, this may or may not violate the DMCA due to copy protection schemes on some DLC).

Re:Hope they win (0)

Anonymous Coward | about 5 years ago | (#29594995)

What? You can usually find a bunch of used PC games on Amazon, there's definitely not "no buying games used". You're taking a gamble on whether multiplayer still works, sure. But multiplayer is a nonfactor in the majority of games.

The reason why physical retailers are dropping PC games is because the retarded/casual market that they cater to has moved on to consoles, because consoles are meant to be easier or something? PC games retail happens exclusively through mail order and digital distribution nowadays.

Re:Hope they win (1)

wvmarle (1070040) | about 5 years ago | (#29595157)

I think PC games are different for historical reasons. By the time PCs got powerful enough to play games (that was the time of the first 486 processors, when colour displays were not even standard equipment yet) the consoles were there for like ages already. Connecting usually to the TV as display (colour!), with far better graphics than what the PC could do. Heck my MSX home computer, at least 10 years older, could do better in that aspect than most PCs until the 386 era.

Console games were surely traded lively at the time already. PC games are from a much later era - an era where game makers started to get more greedy and started to think of ways to curb the second hand market. The console second hand game market was probably simply too developed to stop. Just like second hand books: it is unthinkable to stop that trade now. We are too used to it. For PC games the game makers obviously succeeded.

Another difference may be that until not so long ago PC games came on floppy/CD, easily copyable, while console games came on memory cassettes, not easy to copy without special equipment. So it was relatively hard to get your hands on pirated copies.

Mirror at PC World (0)

Anonymous Coward | about 5 years ago | (#29594593)

Here's another link to the same article, hosted at PC World (1 page printable version), just in case we need the mirror: http://www.pcworld.com/printable/article/id,172852/printable.html [pcworld.com]

Already settled by First Sale Doctrine, not DMCA? (0)

Anonymous Coward | about 5 years ago | (#29594611)

http://findarticles.com/p/articles/mi_m0BLL/is_7_25/ai_n36512592/

A judge seems to have decided it was OK... same players (vernors vs. autodesk), different set of rules - first sale doctrine, as mentioned above. Now after two years Autodesk's coming back with a case based on DMCA instead? There must be a new business/restricted IP friendly judge in office.
g=

Absolish copyright! =O Rawr. (-1, Troll)

BlueKitties (1541613) | about 5 years ago | (#29594619)

Dramaqueen dramabait blah blah. Call me crazy, but I'm sick of copyright. There's a difference between stealing a TV, and making a copy. It would be like taking a picture of a TV, and being sued for stealing the TV. You paid lots of cash to make your product? Well too damn bad -- a lot of Mathematicians worked hard to find mathematical relations, and I don't see you coughing up cash for them. Hurting innovation? Not today -- we don't need Brittany Spears, we don't need the Matrix. There is a wealth of industry waiting to be born from free distribution, but today it remains hindered in favor of a different industry. Economic growth can come from many places, but garbage crap like this isn't one of them.

Now patents...? There are no laws against building a machine that is patented, just how you make profit off of it. A lot of people say we need "copyright reform." Well, I say what we would have after "reform" would not be copyright at all. Copyright needs to be abolished, and an entirely new system needs to be erected. Laws need to adapt to the age of the Internet.

the interesting part (1)

gEvil (beta) (945888) | about 5 years ago | (#29594633)

The interesting part is this bit from TFA: "Early last year the judge declined a request by Autodesk to dismiss the case."

Autodesk didn't want this to go before a judge because they know exactly which direction it will go (hint: not in their favor). This may just be the EULA case we've all been waiting for.

Re:the interesting part (1)

drinkypoo (153816) | about 5 years ago | (#29594813)

It's not the EULA case we've all been waiting for because contracts are already trumped by law, and this is covered by First Sale law.

Frivillous Claims. (1, Funny)

Anonymous Coward | about 5 years ago | (#29594657)

I think the penalty for filing a frivilous claim like this should be 5 Slaps. The defendant in this case, Vernor, should be permitted to slap the CEO of AutoDesk redeamable at anytime with a 1 year expiration.

>> Ding Dong!
>> Who's there?
>> I'm here to claim my prize.
>> But I'm in the middel of dinner?
>> Slap!
>> I got 4 more I'll see you next week at your kid's little league game.

Re:Frivillous Claims. (1)

denis-The-menace (471988) | about 5 years ago | (#29595069)

It should be done in a public space and the slappee needs to carry a huge sign explaining WHY he's getting slapped.

They sold him a CD, not just a license (3, Interesting)

192939495969798999 (58312) | about 5 years ago | (#29594667)

As stated countless times, they sold him a copy of the software, not just a license. Their own argument falls down when one considers that they didn't have to physically sell him a cd with the license, they could have done what movie theaters do and sold him a key that lets him access the software somewhere else. Still, they gave him the physical media. With posession 9/10ths of the law, I find it highly unlikely that he would somehow not be "allowed" legally to resell items in his posession. The new licensee might not be able to activate their product, but that's not his problem. He can sell the physical media all day long and there's nothing anyone can do about it.

Re:They sold him a CD, not just a license (1)

netscan (1028690) | about 5 years ago | (#29595127)

Presumably he's noting in the sale that the activation key is included. Either way it's still a pointless waste of resources. AutoSue made their money on the sale, they should move on and stop feeding the lawyers.

Mostly upside potential for us? (2, Insightful)

DoofusOfDeath (636671) | about 5 years ago | (#29594669)

It seems to me that for a number of years we've been living as though Autodesk's position is the legal one.

So is it maybe the case that if Autodesk prevails, we pretty much keep the status quo, but if Autodesk loses, we have some of our freedoms reaffirmed by the courts?

It sounds like we should be glad this is going to trial.

Used software (1)

Orion Blastar (457579) | about 5 years ago | (#29594731)

One ought to be able to buy used software for the value of thrift to those who ordinarily cannot afford it. This should apply to CDs, DVDs, Video Games, MP3 files, PDF books, etc. If the original owner does not want it anymore they can sell it for a reasonable price to someone else.

Now I can see stopping an eBay sale because it was an illegal copy, but that is hard to prove as the item is not always available for inspection and the CD or DVD case may have gotten lost and replaced with a different one.

There is another way to get used software via auction in bidding on storage lockers. Legally if a person or company does not make payments on a storage locker, the storage locker place has the right to auction off their property to the highest bidder. I have friends who bid on storage lockers. Sometimes they get computer equipment and software. They gave me Visual BASIC 3.0 Pro on floppy disks, Visual BASIC 5.0 upgrade, Lotus Notes (forgot the version), Lotus Smartsuite 97, all old software just for me helping them out with the sorting of the computer stuff. Now do I own that software or is it a DMCA violation because I was not the original owner? The original owner is unknown, there was no name or address on the storage locker, and obviously they stopped payments because the computer equipment and software was very very old and useless to them.

Re:Used software (3, Insightful)

Talonius (97106) | about 5 years ago | (#29594827)

You own the software, but you're not licensed to use it. Kind of similar to the "you can have a circumvention device, and you can have a product on which the device works - both are legal. Using the circumvention device to remove the protection is illegal, however."

Car analogy: you can be given the keys to your parents car, you can have access to their car, but it's not legal for you to drive it if you're licensed to drive.

Re:Used software (1)

Talonius (97106) | about 5 years ago | (#29594847)

*if you're not licensed to drive.

Re:Used software (1)

Jack9 (11421) | about 5 years ago | (#29595043)

What's more, he didn't actually make a sale. I can say, I'm making available, anything that is not criminally illegal to sell. The question could go to the legality of "making available" that the music industry is so fond of.

Car anology fails (1)

denis-The-menace (471988) | about 5 years ago | (#29595125)

It's the *True* owners of the car denying you the right to drive the car, Not Ford or GM.

Reselling second hand laptops (0)

Anonymous Coward | about 5 years ago | (#29594779)

All second hand laptops must have their licensed software removed.. nice.. will see more open source software out there

Re:Reselling second hand laptops (2, Informative)

denis-The-menace (471988) | about 5 years ago | (#29595183)

MS thought of that. The Windows license sticker belongs to owner of the laptop case.

If they change their minds A-la-AutoDesk, then MS will see its market share shrink.

I'm sure they've got a Plan B (4, Insightful)

Voyager529 (1363959) | about 5 years ago | (#29594809)

In my experience, Autodesk has an activation scheme that makes Microsoft and Adobe look downright passive. I had a client once buy a copy of AutoCAD 2008 (the full, ~$4,000 suite), and next year when he retired the original machine and we built a new one, we called Autodesk to activate it and they were like "you need a subscription", and I was like "uhm...he paid $4,000 for your software, and that's not enough, even though, had he kept his old machine, he could still use it, and the fact that he was never told about any subscription BS when he paid for it?" and they were like, "Well subscribing comes with (stupid list of benefits of no use to him)" and I was like "I don't care, I just want an activation code" and after a little more BSing back and forth, I weasled a "one time courtesy" out of them, after which I promptly imaged the machine with Acronis.

Autodesk can't lose. If they win the case, the guy can't resell, end of story. If they lose the case, then they just make a new company policy that once the software is registered (required for activation), the user must provide that same information again in order for the phone rep to provide the activation key. Even if the guy wins the case and can sell the discs (and even the license), unless the judge makes it expressly illegal for Autodesk to withhold an activation key from the second owner, they'll likely take that route to ensure the same end result.

Re:I'm sure they've got a Plan B (1)

mweather (1089505) | about 5 years ago | (#29595011)

I weasled a "one time courtesy" out of them, after which I promptly imaged the machine with Acronis.

Correct me if I'm wrong, but wouldn't putting that image on another machine deactivate Windows? Granted that's probably easier to get reactivated than AutoCAD.

Re:I'm sure they've got a Plan B (1)

Voyager529 (1363959) | about 5 years ago | (#29595133)

You're correct, and imaging to another machine would also deactivate AutoCAD (i.e. not solve the activation problem). The intent of imaging was to protect us from having to deal with AutoCAD again in the event that the machine got messed up for whatever reason (failing hard drive, etc.). Imaging back to the SAME machine SHOULD preserve the activation state, and that's what I'm more concerned with. At the very least it should save us the 90-minute-long install of the AutoCAD suite (yes, it takes approximately that long).

Re:I'm sure they've got a Plan B (1)

dgatwood (11270) | about 5 years ago | (#29595035)

For this reason, AutoDesk is a very evil company, and should be boycotted without mercy.

If this case goes the way I would expect it to go and first sale is upheld, their little schemes are only going to get them slapped with huge fines and possible contempt charges if they continue to violate the order of the court by deliberately obstructing that right. At that point, they can no longer claim ignorance and it becomes willful violation of an order of the court. It will get uglier and uglier until some judge holds up a multimillion dollar class action lawsuit by their customers, at which point maybe they will come to understand that what they are doing is illegal, unethical, and in every other way wrong. And if they don't, they will be gone. Either way, they lose. One way, their customers lose, too.

Well done MODs!!! (0)

Anonymous Coward | about 5 years ago | (#29594923)

Accepting a story, dated today, about a story almost a year old.

There are several levels of failure here, the last of which belongs to Soulskill!

Time for a some new scout-seeking Taco???

Bringing back the fiefdoms (2, Insightful)

log0n (18224) | about 5 years ago | (#29594945)

IIRC, ownership and transfer of property was one of the [many] big talking points in the founding of America. Being a nobody and still able to actually own something, where previously only royalty could (or you could be lucky and they would grant you some, lords I'm looking at you!) was pretty nearly unheard of.

Good to see some ideas never die :)

licence & maintenance (1)

Atreide (16473) | about 5 years ago | (#29594967)

something i don't understand

if i buy licence but not product
and this licence is time limited
why do i have to pay for maintenance ?

isn't licence a temporary right for me to use the product ?
in this case why would licence be detached from support & maintenance ?

Re:licence & maintenance (1, Informative)

Anonymous Coward | about 5 years ago | (#29595201)

The license gets you the right to use the software for a limited time *as-is*. Maintenance covers updates, supports covers you calling in for help. What's so hard to get ?

This was decided last year - Autodesk lost (1)

gnasher719 (869701) | about 5 years ago | (#29595093)

Seriously, what moron had to post this article here. Enter "Autodesk Vernor" into Google, and you will find that the case has been already decided more than a year ago, and Autodesk lost.

How old is this? (2, Informative)

dummptyhummpty (1412923) | about 5 years ago | (#29595165)

From the only comment in the article: "Ron said on Wednesday, 30 September 2009 Of course no one responded to your request for comments, this was decided over a year ago http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars [arstechnica.com] So much for breaking news."

Business as usual at Autodesk (0)

Anonymous Coward | about 5 years ago | (#29595211)

This kind of stuff is SOP for Autodesk- whose entire business model is based on selling 'rights to use' for overpriced products.

Flints, Flames and Infernos are high end 'hardware' based compositing stations. Autodesk has been making and licensing them for quick a while- and they sell them for hundreds of thousands of dollars.

You might think that if you bought a flame for $200,000 dollars, you'd be set. But you aren't. Then you have yearly support fees exceeding $10,000 dollars, not to mention upgrade fees etc. If you don't pay for support for 2 years, then want to pay for the latest upgrade, you'll have to pay for the full 2 years you missed.

If you ever try and SELL that $200,000 dollar system that you've paid for in full, be prepared to pay Autodesk the $80,000 dollar transfer fee.

They're getting better. Back in the day, they used to be based on SGI Onyx's etc, where the price (200k) wasn't wildly out of line with the advanced graphics hardware.

Then in 2005 or so, they moved from SGI based (Irix?) to x86 based Linux machines- and suddenly they were selling machines that cost $10,000 dollars for over 200k; and costumers started to complain.

So now prices are slightly lower, they're starting to offer comparable alternatives (Flare) which cost less, and has less 'prestige' but will maybe delay the inevitable for them for a few years.

Posting Anonymously because Autodesk is friggin lawsuit happy.

An easy solution.. (1)

p1r4t3 (1139441) | about 5 years ago | (#29595225)

Why not take all these items and their packaging and start mass shipping everything back to the creator since they say it can't be resold or transfered. I am all for this, let them deal with the mess, heck get a large enough crowd to do it and it would cause back ups in their warehouse. I already considered this for computer components that can't be thrown away, I'll just start sending everything back to the manufacturer so they can dispose of them since I can't.
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