Re: First Sale upheld in software case

[Rjack]

Alexander Terekhov wrote:
> http://www.osnews.com/img/22270/order.pdf

For all the folks who cheered the JMRI decision concerning the
Artistic License, they would be wise to observe the Judge's words in
this case:

"D. Wise and the MAI Trio Conflict Irreconcilably; this Court Must
Follow Wise.

 With two sets of conflicting precedent before the court, the question
becomes which to follow. That question, at least, has a simple answer.
The court must follow the oldest precedent among conflicting opinions
from three-judge Ninth Circuit panels. United States v.
Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir. 2005). This court is
loath, however, to apply this rule unless there is no way to avoid the
conflict between the opinions. As was the case in the prior order, the
court finds the conflict unavoidable."

The CAFC's JMRI decision irreconcilably conflicts with the older CAFC
panel's decision in STORAGE TECHNOLOGY CORPORATION v. CUSTOM HARDWARE
ENGINEERING & CONSULTING, INC., 421 F.3d 1307 (CAFC 2005):

"In light of their facts, those cases thus stand for the entirely
unremarkable principle that “uses” that violate a license agreement
constitute copyright infringement only when those uses would infringe
in the absence of any license agreement at all."

CAFC Local Rules clearly state that a three judge panel may not
overrule an earlier three judge panels' precedent -- this must be done
by the CAFC sitting en banc.

Sincerely,
Rjack