In Vernor v. Autodesk, Inc., 87 USPQ2d 1501 (W.D.Wash. 2008), the Western District of Washington recently held that the unauthorized sale of used software packages on an internet auction site could be permissible under the first-sale doctrine.  The action was brought as a declaratory judgment claim by plaintiff Timothy Vernor, who sought a declaration that his sale of certain used Autodesk software on eBay would not infringe the copyright in the software.  As the court described the facts,  

In 2007, Mr. Vernor bought four authentic, used AutoCAD packages from an office sale at Cardwell/Thomas Associates (“CTA”), a Seattle architecture firm. Mr. Vernor sold three packages on eBay, but each time he put a package up for auction, an exchange of DMCA notices from Autodesk, suspension of the auction by eBay, counter-notices from Mr. Vernor, and reinstatement of the auction followed. When Mr. Vernor attempted to sell the fourth AutoCAD package, Autodesk filed another DMCA notice, and eBay responded by suspending Mr. Vernor's eBay account for one month for repeat infringement. . . .  More...

Earlier, this blog discussed the controversial Autodesk v. Vernor decision recently issued by a district court in Seattle, Washington.  Now, shortly after the Vernor decision, another federal district court declined to follow the reasoning in Vernor, and instead treated the software transaction as a license, not a sale.  The decision in that case, Blizzard v. MDY, was issued on July 14th. Judge David Campbell of the U.S. District Court for the District of Arizona ruled that MDY Industries and its founder Michael Donnelly were contributorily and vicariously liable for infringing the copyrights of Blizzard Entertainment and Vivendi Games, Inc. (hereafter referred to as “Blizzard”). MDY created a software program called WowGlider (hereafter referred to as “Glider”) to play Blizzard’s World of Warcraft (“WoW”) video game for WoW users while the user is away from his computer. Users liked the Glider program because it allowed them to accumulate points and, in essence, make their game characters stronger without actually having to play the game. There were several important issues at stake in the case, but perhaps the most significant to software publishers and users was whether the court would give the software license its effect as a license, rather than treating users as the “owners” of their software as the Vernor court did.

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