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Drunken Ninth Circuit judges

From: RJack
Subject: Drunken Ninth Circuit judges
Date: Wed, 08 Dec 2010 16:01:09 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On average, the Supreme Court reverses the Federal Appellate Courts
about 73 per cent of the the time.

The VERNOR v. AUTODESK case is one of those appellate decisions that
cries out for reversal. The Ninth Circuit steadfastly refuses to
acknowledge that Congress declared ownership of material, tangible
copies of works are independent of intangible copyrights. 17 USC § 202
makes this very clear:

"17 USC § 202.
Ownership of copyright as distinct from ownership of material object.

Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which
the work is embodied. Transfer of ownership of any material object,
including the copy or phonorecord in which the work is first fixed, does
not of itself convey any rights in the copyrighted work embodied in the
object; nor, in the absence of an agreement, does transfer of ownership
of a copyright or of any exclusive rights under a copyright
convey property rights in any material object."

The ownership of material copies of copyrighted works is a matter
soley reserved for state property law. Both Nimmer on Copyright and the
the non-precedential Federal Circuit has pointed to this fact:

"[T]he court's decision has been criticized for failing to recognize the
distinction between ownership of a copyright, which can be licensed, and
ownership of copies of the copyrighted software. See, e.g., 2 Melville
B. Nimmer, Nimmer on Copyright p 8.08[B], at 8-119 to 1-121 (3d
ed.1997). Plainly, a party who purchases copies of software from the
copyright owner can hold a license under a copyright while still being
an "owner" of a copy of the copyrighted software for purposes of section
117." DSC COMM. v. PULSE COMM., 170 F.3d 1354.

The proper resolution of the VERNOR v. AUTODESK decisions is dependent
upon the California Civil Code section 654:

"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."

Under California law, the right to possess and use material objects
is the equivalent of ownership of that tangible, material property.

RJack :)

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