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  "The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

Autodesk, Inc
Hall Of Shame Member
Added December 3, 2007

Last updated : September 11, 2010

According to the 9th Circuit Court of Appeals:

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.

Vernor v Autodesk, decided September 10, 2010

The 9th Circuit Court of Appeals is called the 9th Circus for a reason: they are a bunch of clowns. The 9th Circuit Court of Appeals is overturned by the Supreme Court twice as often as any other Circuit. This reasoning by the 9th Circuit Court of Appeals grants the copyright owner sweeping powers not given by Copyright Law. The case has been re-filed for a rehearing by the 9th Circuit en banc. After that there will likely be a petition to the Supreme Court.

UPDATE - September 30, 2009 District Court Western District of Washington
Judge Richard A. Jones again ruled in favor of Timothy S. Vernor again stating that Vernor was allowed under the first sale doctrine to resell the Autodesk software on eBay. The judge also stated that Autodesk sells its software rather than "licensing" it as claimed by Autodesk. We have 15 documents from this case [all in PDF format], dating from November 11, 2007 through September 30, 2009. Click here to read them or to download them.

We first heard of Autodesk when we received an email from Tim Vernor titled "my suit against Autodesk" on September 18, 2007. Tim wrote,:
"Karen, Thanks so much for the info you make available on your site. I don't think I could have gotten this far without you. I sent you some of my paperwork and hope you recieved it and had time to look it over. Any comments or help woud be greatly appriciated. Thanks, Tim"
He emailed us the NOCI (Notice of Claimed Infringement) sent by AutoDesk to eBay in which AutoDesk tells eBay to terminate the auction.

We received a copy of his lawsuit in the mail. We then contacted Greg Beck at Public Citizen's Litigation Group to see if they might be interested in this case.

We received another email from Tim Vernor on September 26, 2006:

"Karen, Thanks for putting me in touch with Grek Beck. He has agreed to represent me and is working on an amended complaint. I can't thank you enough, Tim"
So, what started all of this? At a yard sale, Tim Vernor bought some Autodesk software called AutoCAD (CAD stands for Computer Aided Design). This is expensive software and Tim decided why not try selling it on eBay? So he listed it. Oppps. Autodesk didn't like that and had eBay terminate his auction using the DMCA ("Digitial Millennium Copyright Act"). Tim fought back filing a counter notice and Autodesk didn't follow-up.

Tim found more Autodesk software and listed it on eBay as well. Deja vu all over again; Autodesk had eBay terminate those auctions as well. This time Tim's eBay account was suspended. Apparently using our web site for inspiration, Tim filed his own lawsuit against Autodesk, representing himself.

His case is a lot stronger now with Greg Beck at Public Citizen's Litigation Group representing him. Tim got a number of newspapers to pick up his story, like this one in The Register.

On November 14, 2007, Public Citizen Litigation Group issued a press release about Autodesk and the Amended Lawsuit filed against Autodesk.

So much for the outlines and the facts. Now, on to our rant about Andrew S. MacKay and Autodesk. Corporate Attorney Andrew S. MacKay is a partner in the firm of Donahue Gallagher Woods LLP who has three offices in the Oakland, California area.

Which one is MacKay?
(hint - he's the dumb-looking one)

We have only referred to one other person on these pages as a pompous twit, and that was Sy Garfinkel of Sykel Fabrics. We now bestow that that honor upon Andrew S. MacKay, a partner in the firm of Donahue Gallagher Woods LLP. Along with the second presentation of the The Putrid Plecostomus Award. What ever has Andrew S. MacKay done to deserve such honors, you ask? Well, we're happy to tell you.

Each state has its own Bar and its own Code of Ethics. However, they are very similar from state to state, with a few minor exceptions. Universally, the state bar "Code Of Ethics For Lawyers" (an oxymoron if there ever was one) always requires that a lawyer must know, and be up to date on, the legal area that lawyer attempts to practice. WOW! What a concept! A lawyer knowing the law! You think we jest? Silly you. We do not.

On May 25, 2007, Andrew S MacKay sent a letter to Tim Vernor concerning the issues. We have annotated this letter with our comments, as we also have annotated the letter sent to Tim Vernor on June 29, 2007.

We feel that he demonstrates his ignorance of the law in these obviously self-serving and client-oriented letters. Softman v Adobe, a Ninth Circuit decision (that's the Circuit where Andrew S. MacKay, a partner in the firm of Donahue Gallagher Woods LLP is located), in 2001, that slaps down the notion that PC software is licensed, should have alerted Andrew S. MacKay, a partner in the firm of Donahue Gallagher Woods LLP, that he had washed-out one too many times surfing. Andy, that surf board upside the head can be a real bitch (how many fingers am I holding up, Andy?).

You're a partner? In what? A laughing stock? It's corporate lawyers like you that create the morass that swills around the feet of legitimate sellers. You suck the money out of the fat wallet of Autodesk without regard to the rights of the legitimate seller. Rack up them billable hours, work on your golf game and your tan, because we don't believe you're worth much else. Tell your kids that you're a hit man for the mob; at least that has some shred of dignity and a coolness factor to it.

Court Cases

  • Bobbs-Merrill Co v. Straus (1908) US Supreme Court- No license required to use copyrighted material. License "claimed" by copyright holder cannot extend holder's rights beyond statute defined by Congress.
  • Advent Sys. Ltd. v. Unisys Corp (1991) held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code.
  • Downriver Internists v. Harris Corp (1991) held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code.
  • Step-Saver Data Systems, Inc. v. Wise Technology (1991) the court concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license to use software "largely anachronistic.".
  • Applied Info. Mgmt., Inc, v. Icart (1997) held that the sale of software is the sale of a good.
  • Novell, Inc. v. CPU Distrib., Inc. (2000) The first-sale doctrine applies to software.
  • Softman v. Adobe (2001) The first-sale doctrine applies to software and can not be waived or taken away through an EULA.
  • Krause v. Titleserve (2002 2nd Cir Appl) Titleserve owned the software; Krause was confusing ownership of a copyright with ownership of a copy of the copyrighted material.
  • Timothy Vernor v. Autodesk (2008 9th Cir W. Wash) Order by District Judge stating that Autodesk's software was SOLD NOT LICENSED and that the Plaintiff, Timothy Vernor was entitled to use the First Sale Doctrine as a defense to alleged copyright infringement.


And, Andrew, ol' pal, say it isn't true? We've looked at Autodesk's Motion To Dismiss and your name isn't on it! It lists five other lawyers but not you! Autodesk doesn't think you're smart enough? Or did it interfere with your surf boarding? We want to know.

Andy, Andy, Andy. You lost! On May 20, 2008, District Judge Richard A. Jones agreed with us and ruled against you, very plainly stating that, in the absence of a physical signed contract, software is sold not licensed. This ruling is listed above for your reading pleasure. But, let us go back to what we said earlier, Andy-kins. You knew, or reasonably should have known this before you began your wallet-padding, unethical and borderline criminal attack on Tim Vernor. We've already stated that the bar gives lawyers a pass on being unethical because lawyers are policed by lawyers so they give wide latitude to "ethics" when "zealously" representing clients when many time their tactics would be unethical when viewed in their entirety. As for borderline criminal, we go back to you knew, or should have known, so your attacks against innocent re-sellers were deliberately harmful monetarily and physiologically and that's criminal in our book. You are a poster-boy for our campaign for federal civil damage laws against tradmark abuse, tradmark extortion, and copyright misuse. We think not only should the company be liable for damages and expenses but the law firm (or lawyer) as well. Maybe that would restrain the botom-feeding corporate lawyers and get the marketplace back to reason.

And you know what else supports our contention that you are a sleazy, low-life corporate lawyer? Tim Vernor filed counter notice after counter notice after your eBay auction takedowns and you never followed-up with a law suit alleging copyright infringement but simply sat back and allowed all the counternotices to expire. If you didn't "believe" enough that Tim Vernor was infringing to file a law suit for copyright infringement then why interfere with the eBay auctions? Because you could and you never believed he actually would file a lawsuit against your client. You stroke your client, you collect a fat check from your client, and you potentially ruin an innocent re-seller on eBay. Good day all around for you.

So, Andy, you go on, but we think you should touch up your face-paint a bit before your next clown act. It's gotten smeared.


We are pleased to announce that Donahue Gallagher Woods LLP, of the Oakland Area of California, is our Second Award Winner of The Putrid Plecostomus Award to those corporate law firms that go above and beyond the call of duty. They can thank their partner, Andrew S MacKay for this honor.


An NOCI is defined in the DMCA as having certain elements one of which is a perjury statement:

Sec. 512. (c)
(3) Elements of notification. -
    (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
        (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis added)

If an attorney, say one named Andrew S MacKay, were to submit an NOCI to eBay while omitting the under penalty of perjury clause, would that not be considered an attempt to circumvent the "perjury" aspects of the NOCI? That is what Clown Andy did. Isn't that unethical? Isn't that lying to eBay? Isn't that the infamous "P" word?

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It was brought to our attention that Andrew "a.k.a. Bozo" MacKay has warned that if we use the "P" word (s-h-h-h don't tell anyone it stands for Perjury) and claimed he did the dirty deed, he would be suing us for defamation. So Andy boy, for the record, we're not claiming YOU committed perjury when you filed the Notice Of Claimed Infringement ("NOCI") with eBay over Tim Vernor's auctions. It was someone who looked just like you (really stupid) and was using your name and your office. You can understand how we could be confused on the subject, can't you Andy?

You see, Andrew, it's our position that corporate lawyers routinely lie to the courts so why wouldn't they also not flinch at lying to eBay? What we find disturbing is that the courts, and eBay, don't really care if corporate lawyers lie to them. They consider all part of the game. It's a game, to you and your fellow corporate lawyers. It's innocent lives that you try to ruin when you bank the buck from Autodesk, not caring about the law, court cases or the UCC.

The "P" word that applies stands for Pathetic.

And Andy, if you still want to sue, please spell our names correctly. It's the little things that matter.







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Articles About Vernor v. Autodesk




In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.

If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.

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