We have downloaded the various documents from the District Court Western Disctrict of Washington web site. They are all in PDF format.
Case 2:07-cv-01189-RAJ. We do not have all documents filed, only those we considered relevant.
First Amended Complaint, filed November 11, 2007.
Second Amended Complaint, filed November 20, 2007.
Affidavit of Evelyn LaHaie, filed January 15, 2008. She was the Enforcement manager
in the License Compliance Department for Autodesk.
Affidavit of Lawrence K. Rockwell, filed January 15, 2008. Partner in the firm of Donahue Gallagher Woods LLP.
Autodesk Motion To Dismiss, filed February 8, 2008.
Vernor Opposition to Motion To Dismiss, filed February 21, 2008.
Replt to Motion To Dismiss, filed February 29, 2008.
Autodesk Reply to Opposition, filed February 29, 2008.
Court Oder Denying Autodesk's Motion To Dismiss, filed May 20, 2008.
The court noted that Autodesk terminated an eBay auction by Vernor in 2005. Vernor filed a counter notice to which Autodesk (through their idiot attorney
Andrew McKay) never responded. The auction was reinstated by eBay. The court stated:
"In 2007, Mr. Vernor bought four authentic, used AutoCAD packages from an office sale at Cardwell/Thomas Associates (“CTA”), a Seattle
architecture firm. Mr. Vernor sold three packages on eBay, but each time he put a package up for auction, an exchange of DMCA notices
from Autodesk, suspension of the auction by eBay, counternotices from Mr. Vernor, and reinstatement of the auction followed.
When Mr. Vernor attempted to sell the fourth AutoCAD package, Autodesk filed another DMCA notice, and eBay responded by suspending
Mr. Vernor’s eBay account for one month for repeat infringement."
Autodesk attempted to minimize the effects of its actions. However, the court disagreed:
[page 2] emphassis added
"The harm is twofold. First, Autodesk delays his eBay auctions by posting DMCA notices, forcing him to issue counter-notices to reinstate the
auctions. Second, Autodesk’s repeated notices resulted in a one-month suspension of Mr. Vernor’s eBay account, and a resulting temporary
inability to engage in his business. Mr. Vernor fears that Autodesk will repeat this conduct. On the record before the court, that
fear is well-founded. Moreover, an Autodesk attorney threatened to “take further action” against Mr. Vernor if continued to sell AutoCAD packages.
Under these circumstances, Mr. Vernor’s declaratory judgment claim presents a controversy of sufficient immediacy.
Autodesk’s additional contention that Mr. Vernor’s harm flows from eBay’s policies rather than Autodesk is specious.
See Autodesk Mot. at 17. EBay would have taken no action against Mr. Vernor but for Autodesk’s allegations. There is no basis to
blame eBay for the consequences of Autodesk’s copyright enforcement efforts."
Autodesk Motion For Summary Judgment, filed February 20, 2009.
Declaration of Professor Raymond Nimmer supporting the Autodesk Motion For Summary Judgment,
filed February 20, 2009. Based upon the wording of the Court Decision rendered September 30 (see below), it appears that Raymond Nimmer will whore
out his services to the highest bidder. The Decision states:
"Autodesk retained professor Raymond Nimmer as an expert witness. Mr. Nimmer provided two declarations in support of Autodesk’s summary
judgment motion." [page 3]
"Its expert witness, Mr. Nimmer, argues that software companies take a restrictive view of whether they transfer ownership of software companies."
"While Autodesk asks the court to defer to Mr. Nimmer’s views, it does not acknowledge that those views have proven malleable. In
SoftMan Prods. Co. v. Adobe Sys. Inc., 171 F. Supp. 2d 1075, 1089 (C.D. Cal. 2001), the court concluded that a
software manufacturer transferred ownership of copies of its software despite its claim that it had merely licensed their use. The
SoftMan court noted that numerous commentators had taken the same position, including Mr. Nimmer:
It certainly sounds like the court is saying Nimmer provides his services to tp whomever will pay his fee. The oldest profession?
"Merely labeling a transaction as a lease or license does not control. If a transaction involves a single payment giving the buyer an unlimited period
in which it has the right to possession, the transaction is a sale. In this situation, the buyer owns the copy regardless of the label the parties use for
the contract. . . . The pertinent issue is whether, as in a lease, the user may be required to return the copy to the vendor after the expiration of a
particular period. If not, the transaction conveyed not only possession, but also transferred ownership of the copy. Id. at 1086
(citing Raymond T. Nimmer, The Law of Computer Technology § 1.18 p. 1-103 (2d ed. 1992)). In
DSC Commc’ns Corp. v. Pulse Commc’ns, Inc., 170 F.3d 1354 (Fed. Cir. 1999), Mr. Nimmer was of counsel to the party in
Mr. Vernor’s position, claiming to have acquired ownership of a copy of copyrighted software. The DSC court,
citing a later edition of the treatise cited above, dismissed Mr. Nimmer’s view of licensing as “overly simplistic.” Id. at 1362.
(citing R. Nimmer, The Law of Computer Technology § 1.24 at 1-143 to 1-144 (3d ed. 1997)). In subsequent updates of Mr.
Nimmer’s book, his position has changed to one consistent with his opinions in this litigation. E.g., R. Nimmer,
The Law of Computer Technology § 1.115 p. 1-300 to 1-306 (3d ed., Jun. 2006 update), § 1.110 p. 1-268 to 1-269 (4th ed. 2009)
(praising DSC opinion). The court has no explanation for Mr. Nimmer’s change in viewpoint, other than Autodesk’s presumably
lighthearted speculation at oral argument that Mr. Nimmer 'got smart.' ”
[page 18-19] emphasis added
Vernor Cross-Motion For Summary Judgment, filed March 6, 2009.
Autodesk Reply, filed March 20, 2009.
Vernor Response, filed May 29, 2009.
Court Decision, filed September 30, 2009. An appeal to the 9th Circuit Court of Appeals has been filed by Autodesk.