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By | Cade Metz 15th September 2007 01:14

Lawyerless eBayer sues Autodesk over garage-sale miracle

Cad dowser shrink-wrapped in catch-22

YouTubers have Christopher "Jedi" Knight. And eBayers have Tim "Happy Hour" Vernor.

In much the same way the light-sabred Jedi Knight stood up to the DMCA-waving lawyers at Viacom, defending the rights of YouTubers everywhere, Happy Hour Vernor is leading the charge for eBayers, intent on curbing the DMCA doings of software maker Autodesk.

The difference is that Vernor has actually filed a federal lawsuit against Autodesk, asking for $10m in damages.

And he doesn't have a lawyer.

Three years ago, Timothy Vernor quit his day job to enjoy life as a full-time eBay junkie. His online store, Happy Hour Comics, typically sells comics-related collectibles and vintage toys, but about 24 months back, he walked into a "garage sale" and stumbled onto a copy of AutoCAD, the professional design tool that Autodesk prices at roughly $4000 a pop - and he decided to sell that on eBay too.

Well, Autodesk got all huffy. The software maker chucked a DMCA claim at eBay, insisting that Vernor's AutoCAD auction was in violation of the U.S. Digital Millennium Copyright Act (DMCA). eBay promptly yanked the auction, but in an act of defiance rare among internet users, Vernor sent Whitman and company a counter-claim, insisting it put the auction back up. You know, he pulled a Chris Knight.

In doing so, Vernor risked legal action from Autodesk. The software maker had two weeks to either take Vernor to court or allow the auction back online. In this instance, the company backed down, but recently, when Vernor went to another "garage sale", found a few more copies of AutoCAD, and listed those onto eBay, the DMCA notices kept coming.

Vernor continued to counter-claim, but eventually, eBay put a hold on his account. "After four or five [DMCA] claims, they restricted my account, and I couldn't list any items for sale," Vernor said.

A month later, after an appeal to the online auction house, the account was restored. But Vernor is going ahead with that $10m lawsuit, which was officially served this week. In suspending his account, he claims, eBay cut off his sole source of revenue.

The Catch

Neither Autodesk not its lawyer, Andrew Mackay, would speak to us, but the company's argument appears to be that an AutoCAD license can only be used by its original buyer. "AutoCAD software is licensed, not sold," Mackay said in a letter to Vernor. "Autodesk software licenses are 'nontransferable.'" And if you transfer them, the letter says, you violate the company's copyright.

Meanwhile, Vernor argues that Autodesk's license is invalid because there's a catch-22. The license says that you agree to its language if you open the AutoCAD box, Vernor explains, but you aren't able to read the license unless you open the box first.

"There is a piece of paper tucked inside that says it is a licensing agreement with the statement 'by opening the sealed software packet(s), you agree to be bound by the terms and conditions of this license agreement,'" Vernor said in a statement sent to the media. "This is called a 'shrink wrap' contract. It cannot be read until you open the package, which according to the contract constitutes agreement." Though his AutoCAD boxes were open, the eBayer insists, he still had the right to sell them.

Vernor also claims that, whether he's violating a copyright or not, his auctions have nothing to do with the DMCA. After all, he didn't post the actual software to the web. He's just selling it there.

Who's right? Jonathan Handel, an IP lawyer with the California firm Troy & Gould, says that Vernor has a point about the DMCA. "Performing a sale is not a copyright-infringing piece of web content," Handel told The Reg. According to Handel, the DMCA doesn't apply unless Vernor posted Autodesk logos or ad-copy to eBay.

But Handel doesn't buy the catch-22 argument. If the license includes the option of returning the software, he says, then it doesn't matter that you can't read the license without cracking the box. "A return option invalidates the catch-22."

Though Handel acknowledges there's a gray area in the law when it comes to shrink wrap contracts, he's confident that Autodesk has the better position. "When a guy has bought 5 copies of something and is making a business of it, and the package is open, I think the better view is that the agreement is enforceable."

So Timothy Vernor isn't necessarily standing on solid ground. And, yes, he plans on going to court by himself, refusing to enlist the help of a lawyer. "It comes down to finances," Vernor told us. "Lawyers are pretty expensive." Perhaps Jedi Knight can lend his light sabre. ®

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