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Friday, September 10, 2010



Just to add...

The ruling actually doesn't affect me because I live in a small European region which as a home of Mercedes and Porsche (but I drive BMW), the problem is the following scenario:

I, as an owner of multiple Philips LCD TVs with Ambilight (very high quality and best experience, highly recommended) receive an offer from Philips to buy the latest and greatest version at discounted price.

The fine print says that I must "destroy" all my Philips LCD TVs previously bought from Philips.

Instead, I sell all my old TVs to the Ninth Circuit for 0.01 EURO.

Question: Am I guilty of trafficking in stolen goods?

Is Ninth Circuit also a criminal for using one of my old TVs?


A court headquotered in California overruled California Civil Code?

It has been pointed out that Vernor opinion suggesting that Vernor was not an owner of copies he bought (suggesting that it was not his property) contradicts California Civil Code:

"The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property."

It's unbelievable... simply unbelievable.

Vernor opinion also contradicts the 2nd Cir.

"Several considerations militate against interpreting § 117(a) to require formal title in a program copy. First, whether a party possesses formal title will frequently be a matter of state law. See 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.08[B][1] (stating that copy ownership “arises presumably under state law”). The result would be to undermine some of the uniformity achieved by the Copyright Act. The same transaction might be deemed a sale under one state's law and a lease under another's. If § 117(a) required formal title, two software users, engaged in substantively identical transactions might find that one is liable for copyright infringement while the other is protected by § 117(a), depending solely on the state in which the conduct occurred. Such a result would contradict the Copyright Act's “express objective of creating national, uniform copyright law by broadly preempting state statutory and common-law copyright regulation.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); see also 17 U.S.C. § 301(a).

Second, it seems anomalous for a user whose degree of ownership of a copy is so complete that he may lawfully use it and keep it forever, or if so disposed, throw it in the trash, to be nonetheless unauthorized to fix it when it develops a bug, or to make an archival copy as backup security.

We conclude for these reasons that formal title in a program copy is not an absolute prerequisite to qualifying for § 117(a)'s affirmative defense. Instead, courts should inquire into whether the party exercises sufficient incidents of ownership over a copy of the program to be sensibly considered the owner of the copy for purposes of § 117(a). The presence or absence of formal title may of course be a factor in this inquiry, but the absence of formal title may be outweighed by evidence that the possessor of the copy enjoys sufficiently broad rights over it to be sensibly considered its owner."

Vernor opinion is whittling away at our rights. It sounds like a ruling made in socialist heaven. Of course we don't own our CDs, books, records, tapes, DVDs, software etc etc. Now all they need to do is figure out a way to take the copyrights away so that nobody own any intellectual property. Cultural revolution anyone?

Please appeal to en banc/SCOTUS ASAP!


I'm not a lawyer but making what sense I could of that decision's pdf terrified me. You say " there is no obvious reason why other publishing industries couldn’t begin imposing the same terms" and I agree -- in fact most books and films already impose #2 and #3 of the dispositive criteria, viz:
1) specifies that the user is granted a license;
2) significantly restricts the user’s ability to transfer the software; and
3) imposes notable use restrictions

I'm thinking of the !FBI Warning! prior to the feature that tells me I can't do anything whatsoever with the movie, and the similar language inside every book.

If they squeeze the word "license" into this warning somewhere, it would mean you couldn't resell any of these things. Or -- at least -- that you'd have a lot of work to do to make sure you owned them and could legally sell them.

Nathan Johnson

Personally, I can swallow that I don't own the software itself, that is the intellectual property that they created. The same way I can't say I created the words in a book that I purchased; but I do own the pages upon which it was printed and can therefore loan, rent or sell it as I see fit. I don't see why the courts refuse to make the connection and simply say that those terms of the EULA violate first sale and are therefore unenforceable.

Bottom line is there should be no way they can say you don't own the license to use that software and therefore should not be able to restrict your ability to sell that license.

Dan Moulding

In what bizzare universe is distribution of copies via "licensing" a concept that even makes any sense? There is no exclusive right to distribute copies via "licensing", that I'm aware of. It's simply not in the list of enumerated exclusive rights in 17 USC 106. The copyright holder has the right to distribute "by sale or other transfer of ownership, or by rental, lease, or lending". Clearly Autodesk's characterization of the distribution isn't "sale or other transfer of ownership". But it doesn't fit any of "rental, lease, or lending", either. All three of those types of distribution entail eventual return of the property.

It would seem that anyone may distribute copies via "licensing" since that's not one of the exclusive rights of the copyright holder. Could Vernor avoid all this trouble by crafting his own "license" by which he distributes the discs? Obviously this is absurd, but it seems to be an inescapable consequence of the court's finding.


How can someone agree to such a unique license when that license is behind a sealed cover in a closed box? I'm sure all licenses are unique to the software and I have never seen anything on the box that says there are special agreements that must be made. Once that box is opened you can’t return it. Whenever I have purchased software there is always some part of it that says 'by opening and installing this software you agree...' stuck to the case/envelop that contains the disc. This is just another example of how business and law are acting childish.


Does that mean that if publishers of books, movies and video games started to put the same restricted redistribution terms on their products that all of the stores that sell used books, movies and video games would have to close their doors?

There should be some restrictions on what kind of restrictions are allowed.

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