Re: Psystar's legal reply brief in response to Apple

[Hyman Rosen]

On 8/10/2010 2:44 AM, Alexander Terekhov wrote:
> http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html

The actual citation to Wells is
<http://scholar.google.com/scholar_case?case=18372604617204877041>.
You cited a case that references Wells. You are correct that by this
case, copies made under a restrictive license (such as for private
use) and subsequently sold do not infringe copyright, so the rights
holder must sue under breach of contract terms. Congratulations!
Finally, a citation that actually supports your case :-)

However, this case is from 1959, and changes to the Copyright Act
in 1976 and later affect this decision in at least some ways, e.g.,
    <http://law.onecle.com/uscode/17/109.html>
    It is the intent of the Committee, therefore, that in an action
    to determine whether a defendant is entitled to the privilege
    established by section 109(a) and (b), the burden of proving
    whether a particular copy was lawfully made or acquired should
    rest on the defendant.
This is different than the standard Wells used, where the plaintiff
had this burden of proof.

Notice also that the court in Wells says
    The exclusive right to vend the copyrighted work, however,
    is not unlimited, since Title 17 United States Code § 27,
    specifically provides that "* * * nothing in this title shall
    be deemed to forbid, prevent, or restrict the transfer of any
    copy of a copyrighted work the possession of which has been
    lawfully obtained."

The law no longer says this, but now includes the language
    Notwithstanding the provisions of section 106(3), the owner
    of a particular copy or phonorecord lawfully made under this
    title, or any person authorized by such owner, is entitled,
    without the authority of the copyright owner, to sell or
    otherwise dispose of the possession of that copy or phonorecord.

The difference between a copy "lawfully obtained" and "lawfully made"
might be significant.