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.