San Francisco - The Electronic Frontier Foundation (EFF), joined by a coalition of public interest, consumer, and library groups, urged a federal appeals court Thursday to preserve consumers' rights and the first sale doctrine in a battle over an Internet auction of used computer software.

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.

"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."

In an amicus curiae brief filed Thursday with the U.S. Court of Appeals for the 9th Circuit, 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 Autodesk cannot trump the first sale doctrine with a "license agreement" included with its software.

"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," said Sherwin Siy, deputy legal director for Public Knowledge. "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 the full amicus brief:


Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation

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