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

[Alexander Terekhov]

http://en.wikipedia.org/wiki/Mergers_and_acquisitions in jeopardy as
well.

http://ipspotlight.com/2010/09/19/ninth-circuit-licensee-of-off-the-shelf-software-may-not-resell-used-copies-of-the-software/

"Ninth Circuit: Licensee of off-the-shelf software may not resell used
copies of the software 

September 19, 2010, 8:19 pm 

Filed under: Copyrights, Due Diligence 

Attorneys and IT consultants who handle intellectual property due
diligence will want to note a recent decision by the Ninth Circuit
relating to the transferability of licensed software.  In  Vernor v
Autodesk, the Court considered the case of Timothy Vernor, who sold used
copies of Autodesk’s AutoCAD software on eBay.  Autodesk argued that the
sales constituted copyright infringement.  Vernor argued that the
software copies were governed by the “first sale” doctrine, which is an
affirmative defense to copyright infringement that allows owners of
copies of copyrighted works (e.g., books, CDs, DVDs) to resell those
copies.  

The court analyzed the AutoCAD license agreement to determine whether
AutoCAD users were “owners of a copy” or “licensees”, as only “owners of
a copy” are eligible to assert the first sale doctrine.  Reviewing the
AutoCAD license agreement, the court noted that the agreement prohibited
customers from renting, leasing, or otherwise transferring the software
without Autodesk’s prior written consent.  Focusing on the assignability
and use restrictions of the license agreement, the court found that
AutoCAD users are mere licensees and thus not permitted to resell the
software:

We hold today that a software user is a licensee rather than an owner of
a copy where the copyright owner (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. 

The court’s decision should remind entities involved in merger and
acquisition due diligence that software licenses may not automatically
transfer in the transaction.  If the license “significantly restricts
the user’s ability to transfer” and imposes use restrictions (each of
which is the case in many software licenses), then the purchaser may
need to obtain consent before the software can transfer to the new
entity. "

regards,
alexander.

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