A pivotal court case being heard in the 9th U.S. Court of Appeals, San Francisco, could determine whether consumers will continue to have the right to buy and to sell used items like books, music, movies or software programs.
In the case, Thomas S. Vernor vs. Autodesk, six public-interest and advocacy groups filed a friend-of-the-court brief asking that the traditional rights of consumers be upheld. Vernor, who sells items on eBay, was charged with copyright infringement by Autodesk, which objected to his selling some copies of the company's software he had purchased from a third party. Autodesk said Vernor couldn't resell the items because they were licensed, not sold. Vernor won his case in 2008 in the U.S. District Court, Seattle, and Autodesk appealed.
The groups filing the brief, Public Knowledge, Electronic Frontier Foundation, American Library Association, Association of College and Research Libraries, Association of Research Libraries, Consumer Federation of America and U.S. PIRG, said that a decision in favor of Autodesk would overturn more than a century of copyright law while harming consumers. A copy of the brief is here.
According to the brief: “On the one hand, copyright’s exclusive right of distribution gives copyright owners control over the first vending of their works. After an individual copy has been sold, however, the first sale doctrine steps in and puts further dispositions of the copy beyond the reach of the copyright owner. The first sale doctrine thus ensures a 'second life' for copyrighted works in libraries, archives, used bookstores, online auctions, and hand-to-hand exchanges.”
The groups argued that Autodesk is trying to overturn that balance “by intoning 'magic words' in contractual 'license agreements,'” so that consumers would not have the right to purchase software, only to license it. If that interpretation was upheld, software and, by extension, the resale of any other copyright material, would be severely restricted.
The groups argued in the brief: “The position pressed by Autodesk here would jeopardize not only the interests of consumers of software, but also those who rely on libraries, used bookstores, video rental services, and online auctions to buy and sell books, music, films, videogames, and other copyrighted works.”
Sherwin Siy, Public Knowledge deputy legal director, explained the case: “What's at stake in this case is the ability of consumers actually to own the things they pay for. We can't let the fine print used by the copyright holder gain complete control over every aspect of a work's use. If that happens, then everything becomes a potential copyright infringement. The simple things we take for granted, like buying and selling used books or CDs, or even software, would disappear under the threat of massive fines or possible criminal charges.”
“For too long, software companies have tried to strip consumers of their rights as owners of software by pretending that all software is licensed, rather than sold,” said EFF Senior Staff Attorney Fred von Lohmann. “But if software companies can strip us of our rights with a license agreement, there’s nothing to stop book publishers, record labels, and movie studios from using the same trick to shut down libraries, archives, used bookstores, and online auctions. For more than a century, the first sale doctrine in copyright law has stood for the principle that if you bought it, you own it, and you can resell it or give it away.”
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