Vernor v. Autodesk

This case tests whether the "first sale doctrine" in copyright law, which makes it legal to resell, lend, or give away books, CDs, DVDs, and software that you own, will survive in the digital age of "licensed" content.

Timothy Vernor is an online software reseller who tried to auction four packages of Autodesk's AutoCAD software on eBay. Autodesk threatened Mr. Vernor with a copyright lawsuit, claiming that its software is only "licensed," never sold. With the assistance of the public interest litigators at Public Citizen, Vernor filed suit in Seattle against Autodesk, asking the court to clarify his right to resell the AutoCAD software packages. He prevailed before the district court in 2009, prompting Autodesk to appeal.

Autodesk's position is that its software is "licensed," rather than sold, and thus that the first sale doctrine doesn't apply (it only applies to copies you "own," not those you merely lease). If that's right, then it would violate copyright law lend or resell it without Autodesk's permission.

In an amicus curiae brief filed with the court of appeals, EFF—joined by the Consumer Federation of America, the American Library Association, Association of Research Libraries, Association of College and Research Libraries, U.S. Public Interest Research Group, and Public Knowledge—argued that copyright owners should not be able to trump the first sale doctrine by using a few "magic words" in a "license agreement."

A three-judge panel from the Ninth Circuit sided with Autodesk. The court held that copyright's first sale doctrine may not apply to software if the vendor saddles the transfer with enough restrictions to transform what the buyer may think is sale into a mere license.

Vernor’s subsequent request for a full-court review of the decision, which EFF supported, was denied. On June 20, 2011, EFF along with several other nonprofits groups filed an amicus brief asking the Supreme Court to review the Ninth Circuit's decision.