Second-hand software cannot be resold, according to a federal appeals court that ruled last Friday in favor of the software industry and defendant Autodesk.
The ruling by the 9th U.S. Circuit Court of Appeals overturns a prior decision by a lower court in favor of the plaintiff, Timothy Vernor.
Vernor purchased old copies of Autodesk’s copyrighted AutoCAD design software from Autodesk customer Cardwell Thomas & Associates (CTA). He then sold them on eBay.
However, the 9th Circuit ruled that CTA was not an owner of the software because Autodesk licensed the software to them. As such, Vernor could not have circumvented the “first-sale” doctrine—a 102-year-old U.S. Supreme Court precedent that copyright holders cannot prevent the reselling of its goods after an initial sale—because Vernor never actually owned the software he purchased, the 9th Circuit said.
“Autodesk retained title to the software and imposed significant transfer restrictions,” wrote 9th Circuit Judge Consuelo Callahan in a unanimous opinion from the three-judge panel. “It stated that the license is nontransferable, the software could not be transferred or leased without Autodesk’s written consent, and the software could not be transferred outside the Western Hemisphere.”
“Autodesk is pleased with the opinion issued by the 9th Circuit in which it unanimously affirmed the long-standing industry practice permitting the licensing of software copies to users,” said company spokesman Greg Eden.
