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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit C

From: Alexander Terekhov
Subject: Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit Court of Appeals
Date: Tue, 21 Dec 2010 19:26:35 +0100

Hyman Rosen wrote:
> On 12/21/2010 12:35 PM, Alexander Terekhov wrote:
> > Distributing a copy lawfully made under 17 USC by its owner is an act
> > under 17 USC 109 and it doesn't require the copyright permission
> > at all.
> Distributing a copy that was made under a personal use license
> infringes copyright because "lawfully made under this title"
> includes the restrictions on use. To realize this, imagine the

You're in denial, Hyman.

"In Independent News, plaintiffs, the distributor, publisher, and
copyright owner of comic books, sought to enjoin the defendant, a
second-hand periodical dealer, from selling comics which plaintiff's
wholesaler had sold for scrap to waste paper dealers, who in turn resold
them to defendant. In upholding the district court's denial of the
injunction, the Third Circuit found, inter alia, that defendant's sale
of the comics did not constitute copyright infringement since plaintiffs
had engaged in a first sale of the comics. The court so held even though
there was a contract between the distributor and the wholesaler that the
wholesaler would dispose of the comics "for no other purpose than waste

"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."


(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.)

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