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Court may take another look at case that pits software maker Autodesk against eBay resellers

Is the Ninth U.S. Circuit Court of Appeals going to take another look at Vernor v. Autodesk, the case in which software maker Autodesk says consumers don’t have the right to resell their software on secondary markets, such as eBay or even yard sales? Last month, a Ninth Circuit panel ruled against the consumer, Timothy Vernor.

Public Citizen, which represents Vernor, had argued that Vernor was protected by a century-old precedent that says consumers have the right to transfer or dispose of copyrighted products they have bought. However, the court ruled that Vernor had infringed on the company’s copyright and violated the terms of Autodesk’s “license agreement” with the original owner – the fine print that software users see upon installation and must click “accept” to gain access to the product.

If the court’s ruling stands, consumers face the risk of being slapped with a copyright infringement lawsuit whenever they sell used software or video games at a garage sale, donate these items to a library or even loan them to friends. If book and music publishers were to use the same sort of licensing agreements, the same risk would extend to books and music CDs.

Public Citizen asked the full Ninth Circuit to rehear the case, and on Oct. 20, the court asked Autodesk to respond to Public Citizen’s request. The move signals the Ninth Circuit’s interest in reconsidering Vernor.