On October 3, 2011 the U.S. Supreme Court declined a request to
grant certiorari in Vernor v. Autodesk. As we
reported previously, enterprising vendor Timothy Vernor, who
attempted to sell second-hand (but unopened and authentic) copies
of Autodesk's AutoCAD software on eBay, was
rebuffed by the Ninth Circuit, which determined that
Autodesk's customers were licensees and not owners. Thus the
sale of the AutoCAD software to Vernor -- which was prohibited by
the AutoCAD license -- was invalid, and Vernor himself, neither a
licensee nor an owner, could not avail himself of the first sale doctrine.
The Supreme Court's denial of certiorari means that the Ninth
Circuit's
three-prong test for determining whether a software user is a
licensee or an owner is the law -- in the Ninth
Circuit, that is. Will courts in other circuits follow suit? Or
will subsequent software cases eventually yield a split, forcing
the U.S. Supreme Court to weigh in?
In the meantime, the case is back in the hands of the U.S. District
Court for the Western District of Washington, where it will
adjudicate Vernor's
original claim for declaratory relief.
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