|EcommerceBytes-NewsFlash, Number 2369 - September 14, 2010 - ISSN 1539-5065 3 of 3|
A ruling handed down by an appeals court last week that affects software could also affect the resale of books and music. That's the opinion of Greg Beck, the lawyer for Public Citizen who represented Timothy Vernor in the Vernor versus Autodesk lawsuit.
A lower court had said Autodesk could not pursue an action for copyright infringement against Vernor due to the first sale doctrine, but the Appeals Court said Autodesk never sold the software, it licensed it, citing previous cases it had ruled on.
AuctionBytes spoke to Greg Beck to find out if the appeals ruling could impact existing books on the market or only books published in the future, and why he thinks the Vernor ruling could result in "the end of ownership of books and music."
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AuctionBytes: On what basis are you appealing last week's Ninth Circuit ruling in Vernor v. Autodesk?
Greg Beck: The panel felt its hands were tied by previous decisions the Court had made. The full court isn't similarly bound by the previous panel decisions. Only the full court can sort out any problems left over by past these precedents.
AuctionBytes: How likely is it that the full court will agree to look at the appeal?
Greg Beck: Well, it's always a long shot. There are very few cases that get reconsidered. However, I think that this case stands a much more likely chance than most of being reheard by the court because there is this conflicting precedent that the Court has from its past decisions, and there's also conflicting precedent from other courts.
Given that, and given the importance of the issues involved to the first sale doctrine and copyright, I think there's a least a significant chance the Court would consider it.
AuctionBytes: If the full court doesn't consider it, could you appeal to the Supreme Court?
Greg Beck: You can go to the Supreme Court regardless, you can petition the Supreme Court, asking them to take the case. And again, it's always a long shot. The Supreme Court is most likely to look at cases where there is a split in authority between the different courts of appeals, and we think that the Ninth Circuit's decision is incompatible with another decision that the Second Circuit has made.
The court says that case is distinguishable, but I think there's enough tension there that the court might want to sort out its past cases.
AuctionBytes: Do you think it's likely one side or the other will petition the Supreme Court?
Greg Beck: There's a pretty good possibility that whoever loses at the next stage will likely petition the Supreme Court. Whether the court will agree to hear the case is a different matter.
AuctionBytes: How likely would this impact book resellers, but first, let's clarify something. When we're talking about how this case might affect the sale of used books, we're not talking about existing books, right?
Greg Beck: There may be some exceptions, but by and large, books aren't currently issued under the kinds of license agreements software has been issued under for years. The books that are currently on the market are, by and large, at least in the vast majority of cases, won't be affected by the decision.
AuctionBytes: how likely is it in your opinion that book publishers may decide to issue licenses for their books?
Greg Beck: In my opinion, it's almost inevitable that it will happen. You'll probably see it first in cases like textbook publishers where there is already a strong interest in limiting resale because they don't like students selling textbooks to the next class that comes along. They'd much prefer if every student had to buy a new textbook.
So I can definitely see the textbook industry adopting a similar model based on this decision, and I don't think that other kinds of publishers would be far behind.
AuctionBytes: Could a court say that licensing is okay for software but not for books or music?
Greg Beck: A court could say that, but there's no basis in the law for that distinction. Congress has made special rules for software in some cases. Congress limited the ability to rent software, and to check software out from a library,...but Congress has not seen fit to limit reselling software or giving software away. Those kinds of activities would be prohibited under this decision. And there's nothing in the decision itself that distinguishes software from any other kinds of copyrighted work.
AuctionBytes: Whatever the outcome of this case, do you think Congress will get involved in creating a law to give more guidance?
Greg Beck: I don't know, I can't really speculate about that. I can say that I hope that they would if this decision stands.
AuctionBytes: Are there other cases in the pipeline that might affect your case, the Vernor case?
Greg Beck: In the Ninth Circuit there are a couple of other cases that were heard at the same time as ours, but this decision was decided first, so this is now the law of the Ninth Circuit, so any other decisions that come along have to fit within the parameters that this decision set forth.
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Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. She's a widely cited authority on marketplace selling and is author of "Turn eBay Data Into Dollars" (McGraw-Hill 2006). Her blog was featured in the book, "Blogging Heroes" (Wiley 2008). Follow her on Twitter at @ecommercebytes and send news tips to firstname.lastname@example.org.
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