A ruling by a federal appeals court could mean a ban on sales of second-hand software – and even of second-hand books and music.
The Ninth Circuit ruling exempts the software industry from what’s called the ‘first sale doctrine’, which says copyright holders can’t prevent a buyer from reselling or renting an item as long as copies aren’t made. The doctrine dates back to 1908.
The court ruled that Timothy Vernor, who bought second-hand copies of software at garage and office sales to sell on eBay, did not actually own the software and therefore had no right to resell it. A district court had previously sided with Vernor against Autodesk, which brought the case.
The court pointed to Autodesk’s licensing agreement – which Vernor never signed – to justify its decision. This says that Autodesk retains title in the software and can restrict redistribution.
“Although Vernor never installed the software or agreed to its terms, the court held that license effectively bound him anyway because Autodesk, as the software’s legal owner, could dictate the terms on which it was used,” says Greg Beck of Public Citizen, which represented Vernor.
“If standard fine-print license terms like Autodesk’s are enough to withhold ownership, it is safe to assume that most people do not own the software they believe they have bought. And, unfortunately, there is no obvious reason why other publishing industries couldn’t begin imposing the same terms. If they do, it may be the end of ownership of books and music.”
Vernor will now seek an 11-judge review of the decision, and will then apply to the Supreme Court if necessary. “Hopefully, the en banc court will be willing to reconsider those decisions,” says Beck.