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Re: Drunken Ninth Circuit judges

From: RJack
Subject: Re: Drunken Ninth Circuit judges
Date: Wed, 08 Dec 2010 16:01:10 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 9/12/2010 10:09 AM, RJack wrote:

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the the non-precedential Federal Circuit has pointed to this fact: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.


The VERNOR V. AUTODESK DECISION arose in the Western District of
Washington and Washington state law controls -- not California:

"(1) Title to goods cannot pass under a contract for sale prior to their
identification to the contract (RCW 62A.2-501), and unless otherwise
explicitly agreed the buyer acquires by their identification a special
property as limited by this Title. Any retention or reservation by the
seller of the title (property) in goods shipped or delivered to the
buyer is limited in effect to a reservation of a security interest.
Subject to these provisions and to the provisions of the Article on
Secured Transactions (*Article 9), title to goods passes from the seller
to the buyer in any manner and on any conditions explicitly agreed on by
the parties

(2) Unless otherwise explicitly agreed title passes to the buyer at the
time and place at which the seller completes his performance with
reference to the physical delivery of the goods, despite any reservation
of a security interest and even though a document of title is to be
delivered at a different time or place; and in particular and despite
any reservation of a security interest by the bill of lading"

RJack :)

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