The pending lawsuit
of Vernor v. Autodesk might answer this question.
Timothy Vernor makes his
living as an eBay vendor selling used comic books, video games, software, and
collectibles. Autodesk, the maker of
software application AUTOCAD, managed to get several of Vernor’s auctions shut
down. Autodesk managed this feat by sending
a take-down notice to eBay claiming that
Vernor’s sale of used versions of AUTOCAD is copyright infringement.
Like many online sites,
eBay relies on a safe harbor provision under the Digital Millennium Copyright
Act (DMCA) to insulate it from copyright infringement liability for material
posted by eBay online visitors and vendors. In order to qualify for that safe harbor, eBay must remove any material
identified by the copyright owner as infringing. However, under the DMCA, eBay vendors shut
down by a takedown notice can get their auctions reinstated by sending eBay a
counter notice claiming that the material is not infringing and was improperly
removed. That’s exactly what Vernor did, triggering
a DMCA dance of takedown notices and counter notices through which Autodesk
repeatedly had Vernor’s auctions shut down and Vernor subsequently got them
re-instated.
Vernor
ultimately tired of the game and has filed suit against Autodesk in which he
asks a Washington federal court to declare his sale on eBay of used AUTOCAD copies as
lawful. You can read the full complaint here.
The
most relevant issue in the case is application of copyright law’s First Sale Doctrine
to software.