Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

[Alexander Terekhov]

No wonder Pee The GPL Girl Jay of grokxxx is celebrating a 'victory'...
 
Details:

http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/

"Guess What, You Don’t Own That Software You Bought

By David Kravets  September 10, 2010  |  2:01 pm  |  Categories: Digital
Millennium Copyright Act, intellectual property 

A federal appeals court said Friday that software makers can use
shrink-wrap and click-wrap licenses to forbid the transfer or resale of
their wares, an apparent gutting of the so-called first-sale doctrine.

The first-sale doctrine is an affirmative defense to copyright
infringement that allows legitimate owners of copies of copyrighted
works to resell those copies. That defense, the court said, is
“unavailable to those who are only licensed to use their copies of
copyrighted works.” (.pdf)

The 3-0 decision by the 9th U.S. Circuit Court of Appeal, if it stands,
means copyright owners may prohibit the resale of their wares by
inserting clauses in their sales agreements.

“The terms of the software license in the case are not very different
from the terms of most software licensing. So I think it’s safe to say
that most people don’t own their software,” said Greg Beck, the defense
attorney in the case who represented an eBay seller sued by Autodesk.
“The other ramification, there is no reason a similar license could not
be put into the cover of a book. It wouldn’t be difficult for everybody
to implement this.”

Beck said he will ask the San Francisco-based appeals court to rehear
the case with 11 judges.

The Software & Information Industry Association, whose members include
Google, Adobe, McAfee, Oracle and dozens of others, urged the court to
rule as it did. The Motion Picture Association of America also sided
with Autodesk.

The American Library Association and eBay argued against the outcome.
The library association said it feared that the software industry’s
licensing practices could be adopted by other copyright owners,
including book publishers, record labels and movie studios.

That assertion was not lost on the appeals court, saying Congress is
free to modify copyright law “if it deems these or other policy
considerations … require a different approach.”

It was believed to be the first appellate ruling directly addressing
whether a user agreement could forbid resales of software, though the
appellate courts have previously backed companies that have imposed
terms on how software may be used. The decision covers the nine western
states, including California.

The appeals court reversed a lower court judge that said the first-sale
doctrine applied whenever the consumer is entitled to keep the copy of
the work, entitling consumers to resell their purchased software at
will.

The case concerns Autodesk’s AutoCAD Release 14, which was for sale on
eBay. Autodesk, invoking the Digital Millennium Copyright Act, demanded
eBay remove the item from the site, and it promptly did in 2007.

Timothy Vernor, the seller, who purchased at least four copies of the
software from a company that was required to dispose of the software
under a licensing agreement, re-posted the sale and his eBay account was
terminated after Autodesk complained. Litigation ensued.

Autodesk, of San Rafael, California, imposed a significant number of
transfer restrictions: it stated that the software could not be
transferred or leased without Autodesk’s written consent, and the
software could not be transferred outside the Western Hemisphere.

The first-sale doctrine of 1909, in its current form, allows the “owner
of a particular copy” of a copyrighted work to sell or dispose of his
copy without the copyright owner’s authorization. “The first sale
doctrine does not apply to a person who possesses a copy of the
copyrighted work without owning it, such as a licensee,” the court
ruled.

Photo courtesy Steve Snodgrass/Flickr

See Also:

•Music Label’s Copyright Argument is Rubbish
•EFF Wonders: Did Obama Violate Copyright Law With iPod Gift
•Court: Sewing Patterns are Data, Not Code
•Judge Says You Can Sell Your CDs
•Another Court Deals Major Blow to DVD Copying
•Prosecution Alters Pirate Bay Charges in Bid to Win Conviction"

Posted by: 3D_Life | 09/10/10 | 5:43 pm |

“The 3-0 decision by the 9th U.S. Circuit Court of Appeal” Well, that
says it all....unanimous.” Not one, not two, but three complete
imbeciles sitting on the bench. Sounds like the “group “W” bench from
Alice’s Restaurant! Someone check their bank accounts for bribery
money... yea, the offshore ones too!"

"Posted by: zothen | 09/10/10 | 9:39 pm |

What idiot judge(s) gave this ruling!!!

The next steps would logically be, every shop selling software is
guilty, because they have bought the software, and are trying to sell it
to some one else! Any one producing the product would have to open shops
every where, or go out of business because they can not sell their
product! Finally ending with no product any where because it can not be
distributed!
caveat emptor!"

"Posted by: bvdon | 09/10/10 | 11:35 pm |

This would kill all used sales of books, software, video games, etc. Can
I sell my used computer with the operating system?"

"Posted by: nouser | 09/10/10 | 4:46 pm |

So if I buy an Apple Macintosh computer whose operating system software
is “licensed”, not sold, to the user, this would mean that I could not
sell that computer in working order as the OS could not be resold. How
crazy have the courts become? No, don’t answer that. I believe we
already have ample evidence that in many cases lately, the courts are
not to be trusted to do the right thing."

"Posted by: chris911ny | 09/12/10 | 10:03 am | 

When are we going to have teachers in the schools that teach these
little brats posting comments here how not to be a communist and pay for
what they use? If you guys want to “own” your software then you will
have to come up with some millions of dollars, then you can do whatever
you want with it. On the other side, if you want to use your “free”
alternatives then go for the open source stuff or others. The comments
here are not more than a reflection of the deplorable state of the
education in this country now that these kids dont even have an idea of
what is required to produce a piece of work like the products in
question. Yes go and take by force what is not yours you communist
bastards. "

"Posted by: Grashnak | 09/12/10 | 12:09 pm | 

The really hilarious part of chris911ny’s moronic rant is that the
doctrine of first sale relates to private property rights and the whole
underpinning of capitalism. With this court decision essentially taking
away your right to resell something you have purchased we move closer to
a society without private property.

And yet chris accuses those of being against the removal of this private
property right of being “communists”. Way to look ignorant chris."

"Peldor | a day ago | permalink

Quote:

> The ALA fears that the software industry’s licensing practices 
> could be adopted by other copyright owners, including book 
> publishers, record labels, and movie studios.

I agree. I really wish some popular author would shrink wrap 
his/her latest book with a license agreement to show just how 
stupid this particular 'digital divide' is."

"Seraphiel | a day ago | permalink

So a seller acting (as far as we can tell) in good faith is 
punished by an agreement to which he was never a party. 
Simultaneously, this agreement somehow undermines a long-held 
protection that a buyer of goods may dispose of those goods 
in whatever manner they see fit within the bounds of the law.

> if a company says you don't have the right to resell a
>  program, you don't have that right.

This is, more than anything else, a tremendous disincentive 
to buy any program thus encumbered."

"jdietz | a day ago | permalink

Previously, the court said to "license a copy" is the same 
as selling just one copy. Now they are saying the people he 
bought his copies from didn't own those copies. It's 
reasonable to believe a defunct architectural firm would be 
in possession of copies of AutoCAD and be in a position to 
sell them. I think the court is being unreasonable when 
they say the architectural firm did not own copies of the 
software.

The other thing...
Digital resale is prohibited only when the seller prohibits 
it. I see no reason why it would not be prohibited in every 
case, since the seller makes more money if resale is prohibited.

Next up:
When you start up your Nintendo Wii game (which is resaleable 
now) or other console game, you will start getting click-wrap 
licensing agreements prohibiting resale. In actuality, they 
won't do that (the cost of the backlash isn't worth the extra 
revenue they gain), but they may do it for their next system."

Comments from Pee The GPL Girl Jay's grokxxx blog:

"This is bad, but it's not the last word

Authored by: Anonymous on Saturday, September 11 2010 @ 03:25 AM EDT

Vernor has already announced its intention to ask for an en banc 
rehearing. That doesn't mean it will get it, of course, and it 
doesn't mean the full panel would rule Vernor's way.*

A Supreme Court appeal isn't a lost cause, either, as the Supreme 
Court has protected first sale in its most recent decisions. 
Courts have gone up, down, and sideways on EULAs and first sale 
with regard to software. Until the Supreme Court weighs in (and 
it has not), we still have a shot.

So, to summarize, this ruling is not necessarily even the last 
word in the 9th Circuit, and it is certainly not the last word 
for the whole country.

---linuxrocks123

*The 9th Circuit has been very hostile to first sale in recent 
history. See, for instance, Omega v. Costco, for which the 
Supreme Court has granted certiorari."

"Differences between books and software

Authored by: sumnerp on Sunday, September 12 2010 @ 05:24 AM EDT

Perhaps trying to distinguish between a book and software is 
why the law in this area seems such a mess? The engineer in 
me sees them both as information fixed in a medium for 
convenient use. 

Both seem to suffer from publishers tying to impose 
conditions on purchasers subsequent to purchase. In the UK 
publishers seem obsessed with rebinding, and copyright pages 
admonish against this and insist that a similar term be 
imposed on subsequent purchasers. US publishers don't seem 
to share this craze, or perhaps are prohibited from saying 
so), but my US copy of A Confederacy of Dunces seems to 
attempt to limit fair right uses by allowing quotations only 
for review purposes and requiring a license for any 
educational copying. Are these restrictions enforceable?

It's not obvious (at least to me) when information is a book 
and when it is software. We routinely publish software 
source code in book form, is my copy of Lion's Commentary a 
book, software or both? What if the book contains code in 
machine readable format - bar codes for example? Looking in 
the other direction when a literary work is delivered 
digitally does it become software, certainly ebook 
publishers seem to feel the need for an EULA? I've seen 
these attempt to prohibit reading the work aloud - I guess 
those who sub-vocalise should consult their lawyers."

"Vernor v. AutoDesk - Vacated (first sale) and remanded (copyright
misuse)

Authored by: Anonymous on Sunday, September 12 2010 @ 01:13 PM EDT

PJ, at most what's happened is a possible breach of contract 
between Autodesk and the architect firm. Autodesk should be 
suing them for the difference between upgrade and full pricing 
for the newer version, not interfering in someone else's 
commerce. The Ninth Circuit simply erred."

"Authored by: Anonymous on Sunday, September 12 2010 @ 01:47 PM EDT

PJ, if you obtain goods through legal means (a lease), but 
then fail to return those goods per the agreement, you are 
maintaining possession illegally, and it is classified under 
theft through appropriation via failure to return.

In the US, this is generally a state legal issue, but doing 
a google search on "theft failure to return US" will give 
you a list of the state statutes.

Since Autodesk didn't require a return of the original 
software, "failure to return" is not applicable. So claiming 
Vernor was in effect trafficking in stolen goods (first sale 
indeed doesn't apply) is not appropriate."

"Ownership

Authored by: Anonymous on Sunday, September 12 2010 @ 04:00 PM EDT

The Ninth Circuit is probably the most overturned court 
ever.

The VERNOR v. AUTODESK case is one of those appellate 
decisions that 
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09
-35969.pdf 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." 
http://www.copyright.gov/title17/92chap2.html 

The ownership of material copies of copyrighted works is a 
matter soley reserved for state property law. Both Nimmer on 
Copyright and 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. 
http://www.ll.georgetown.edu/federal/judicial/fed/opinions/9
8opinions/98-1024.html

See for example 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." 
http://law.justia.com/california/codes/2009/civ/654-663.html 

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

See for example the Washington state law: 

"(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" 
http://apps.leg.wa.gov/rcw/default.aspx?cite=62A.2-401 "

"First sale and GPL 

Authored by: Anonymous on Sunday, September 12 2010 @ 04:54 PM EDT 

The problem is that since the GPL does not specify that 
title to the copies made is to be retained by the copyright 
proprietor (e.g. all copies made, including copies of 
derivative works must be returned to the copyright owner no 
later than 10 years after creation), title to the copies 
belongs to the licensees who, under the 17 USC 109, is free 
to distribute the copies without the authority of the 
copyright owner.

"In Wells the court granted defendant's motion for acquittal 
on eight counts of criminal infringement of the copyright of 
aerial survey maps owned by Edgar Tobin. Tobin had licensed 
107 of his customers to manufacture reproductions of his 
maps for their own use. Defendant was charged with selling, 
without authorization, copies of Tobin's copyrighted maps. 
The pivotal issue was whether the copies sold by the 
defendant were copies which had been the subject of a first 
sale, thereby terminating their statutory protection:

". . . If title has been retained by the copyright 
proprietor, the copy remains under the protection of the 
copyright law, and infringement proceedings may be had 
against all subsequent possessors of the copy who interfere 
with the copyright proprietor's exclusive right to vend the 
copyrighted work. If title has passed to a first purchaser, 
though, the copy loses the protection of the copyright law 
as discussed above." 176 F.Supp. at 633-634.

The court found that "there has been no showing on the 
record that the copies of the aerial survey maps were not 
published by a lawful licensee of the copyright proprietor 
or that title to these copies was retained at all times by 
the copyright proprietor". 176 F.Supp. at 633. Since the 
Tobin license did not specify that title to the reproduced 
maps was to remain in Tobin, title to the maps belonged to 
the licensees who, under the first sale doctrine, were free 
to resell the maps. The court concluded: "Lacking the 
protection of the copyright law, there can be no 
infringement, and defendant should be acquitted." 176 
F.Supp. at 634." 
http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-
1141.html "

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)