As I have stated before, I believe Autodesk to be in the right (morally, not legally) in its battle to prevent Vernor’s resale of old, upgraded copies of Release 14. In the latest installment, Autodesk has won its appeal to the 9th Circuit Court of Appeals. There will be be further legal moves yet, but Vernor’s chances of winning this case are now more slender. So the right side has won (at this stage). I should be happy, right?
Wrong. Although I think the latest court to look at this has picked the right side, it has done so for entirely the wrong reasons. (Again, morally wrong, not legally. I have no qualifications on legal matters, but I can spot an injustice a mile off). In a diabolical, dangerous, far-reaching decision, it has concluded that the doctrine of First Sale does not exist at all for products where the copyright owner merely claims not to sell its products, but rather to license them.
So all those programs, games, maybe even CDs, DVDs, books etc. you have at home and thought you owned? How about that laptop with its pre-installed Windows? Or that iThing with its iOs? If you’re in the jurisdiction covered by this ruling, you quite possibly now don’t own them at all. Check out the fine print on each of those items; if it includes the magic word “license”, then you may not legally own it, or be allowed to sell it if you no longer need it. If you’re not outraged by this attack on your private property rights, you should be.
What’s more, the Court ruling explicitly rewards companies for making the “license” terms as ridiculously restrictive as they can:
We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.
One of the Autodesk EULA’s more unconscionable and unenforceable restrictions, that of only being able to use the software within a certain geographical region, wasn’t used to point out the unreasonableness of Autodesk’s claimed power over its customers. Instead, it was actually used by the court to help justify its decision!
Amazingly, this ludicrous outcome wasn’t decided in ignorance. The court carefully considered the effects this decision would likely have, but apparently for reasons of legal nicety, decided to go ahead anyway. Common sense and justice be damned, a convoluted and narrow interpretation of partially-relevant previous decisions just had to rule the day.
We can only hope that this case is reviewed and overthrown (again). While such a revised outcome might be unfortunate in terms of failing to right a wrong (Vernor’s sale of already-upgraded software), that would be much preferable to the terrible damage that the 9th Circuit’s decision has inflicted on the people it is supposed to serve. I’m only glad I’m not one of those people.
Public Citizen: Ninth Circuit says consumers may not own their software