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Public Citizen Litigation Group

Nov. 15, 2007 Public Citizen Defends eBay Vendor Against Anti-Consumer Copyright Claim WASHINGTON, D.C. – Public Citizen filed a complaint late Wednesday on behalf of an eBay vendor, accusing a California-based software company of using its copyright to suppress competition from the online sale of used copies of its products. The lawsuit, Timothy S. Vernor v. Autodesk Inc., was filed in federal court in Seattle and contends that the software company’s actions are abusive and lead to higher prices for consumers. Attorney Michael Withey of Seattle also is representing the vendor in the case. eBay vendor Timothy Vernor picked up his first used copy of Autodesk’s “AutoCAD Release 14” at a tag sale. Autodesk sells this product new in a shrink-wrapped box that contains a “license agreement” that the company claims prohibits the purchaser from reselling the software. Public Citizen argues that this contract language is unlawful under the Copyright Act, which guarantees that the owner of a copyrighted product can resell that product without permission. “The Supreme Court has long recognized that, once a copyright owner has sold a copy of its product, it has no right to control subsequent sales,” said Greg Beck, the Public Citizen attorney who represents Vernor. “Just putting a paper inside the box and calling it a license agreement doesn’t negate that fact. If copyright owners could restrict resale of their products with these so-called agreements, used book and record stores would soon disappear. And if companies could so easily transform a sale into a license, a wide range of statutes that protect purchasers of products could be circumvented with a stroke of a pen.” “We don't believe that Autodesk can restrict Vernor’s right to resell its products that he legally purchased,” said Withey. Autodesk not only violated copyright law, but it wrongly used the Digital Millennium Copyright Act (DMCA) to repeatedly force eBay to withdraw vendor Vernor’s used software from auction. “The DMCA provides no prior notice or opportunity to respond, and its heightened remedies were meant to fight piracy, not to enforce contracts,” said Beck. “Additionally, even though Autodesk is trying to interpret its license agreement to prohibit all resale of authentic copies of its products, Vernor never signed or agreed to anything.” Vernor previously sued the company without an attorney. In the amended complaint filed Wednesday, Public Citizen and Withey ask the court to protect Vernor’s rights to resell AutoCAD software and rule that Autodesk’s license agreement is unenforceable. The lawsuit is pending in the United States District Court for the Western District of Washington.