Appeals Court Takes on First Sale Doctrine in Vernor v. Autodesk
On Thursday, February 11, ACRL joined ALA, ARL and a coalition of public interest and consumer groups in urging a federal appeals court to preserve consumers’ rights and the first sale doctrine in a battle over an Internet auction of used computer software.
In an amicus curiae brief filed with the U.S. Court of Appeals for the 9th Circuit, the Electronic Frontier Foundation — joined by the Consumer Federation of America, the American Library Association, Association of Research Libraries, Association of College and Research Libraries, U.S. Public Interest Research Group, and Public Knowledge — supported Timothy Vernor. Vernor is an online software reseller who tried to auction four authentic packages of Autodesk’s AutoCAD software on eBay. Autodesk sent takedown notices to block his auctions and threatened to sue him for copyright infringement, claiming that its software is only “licensed,” never sold.
At the heart of the case is the first sale doctrine. Copyright’s exclusive right of distribution gives copyright owners control over the first vending of their works. The first sale doctrine steps in after an individual copy has been sold and puts further dispositions of the copy beyond the reach of the copyright owner. The first sale doctrine thus ensures a “second life” for copyrighted works in libraries, archives, used bookstores, online auctions, and hand-to-hand exchanges.
The brief argues, in part, that the first sale doctrine is well-established, serves critical economic and democratic values, and promotes access to knowledge, preservation of culture, and resistance to censorship. Libraries rely on provisions in the Copyright Act, such as first sale, to accept donations of special collections and to preserve these works. If Autodesk wins this case, software vendors would be permitted to evade the first sale doctrine via contractual license agreements. Such a ruling could allow other copyright owners to follow suit with licenses on books, CDs, DVDs, and other media, with strong implications for libraries and our users. See the full amicus brief for more details.