eBay seller sues Autodesk for the right to sell used AutoCAD

A lone quixote in Seattle is suing Autodesk for sending copyright infringement notices to eBay, where he is a professional seller. At issue is Tim Vernor's listings for used copies of Autodesk's AutoCAD software -- Autodesk says that when you buy its software, you only "license" it and so you don't get the right to sell it after you're done with it. Vernor is seeking $10 million.
Autodesk is using the Digital Millennium Copyright Act to have legal copies of their software removed from eBay so they can sell more new copies. The latest version of AutoCAD software is around $4,000 a copy. Autodesk's lawyer, Andrew S. Mackay states "AutoCAD software is licensed, not sold and that license is not transferable." AutoCAD software is available for purchase at most major software retailers. There is no indication your purchase would be different from any other until you get it home and open the box. There is a piece of paper tucked inside that says it is a licensing agreement with the statement "by opening the sealed software packet(s), you agree to be bound by the terms and conditions of this license agreement". This is called a "shrink wrap" contract. It cannot be read until you open the package which according to the contract constitutes agreement. US courts have not held a "shrink wrap " contract to be valid. Furthermore the Digital Millennium Copyright Act is only intended to enforce copyright violations, not breach of contract.

The lawsuit also alleges perjury since the notice that was sent to eBay is required to be signed under penalty of perjury and fraud. Using illegal means to make a legal gain (i.e. sell more new copies) is a civil definition of fraud. Autodesk's attorney Andrew S. Mackay is currently under investigation (# 07-24456) by the California State Bar Association for his actions in this matter.

Link (Thanks, Bruce)