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

[Alexander Terekhov]

Stupidity rules in the Ninth Circuit:

"IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ADOBE SYSTEMS INCORPORATED,
Plaintiff,
v.
ANTHONY KORNRUMPF, a/k/a TONY
KORNRUMPF; and HOOPS ENTERPRISE, LLC,
Defendants.
/
HOOPS ENTERPRISE, LLC,
Counter-Claimant,
v.
ADOBE SYSTEMS INCORPORATED,
Counter-Defendant,
and
SOFTWARE AND INFORMATION INDUSTRY
ASSOCIATION,
Third-Party Defendant.
/
No. C 10-02769 CW
ORDER GRANTING
ADOBE SYSTEMS
INCORPORATED AND
SOFTWARE &
INFORMATION
INDUSTRY
ASSOCIATION’S
MOTION TO DISMISS
HOOPS ENTERPRISE,
LLC’S CLAIMS
(Docket No. 34)
Plaintiff

....

First Sale Doctrine

A copyright holder has the exclusive right to “distribute
copies . . . of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.” 17 U.S.C.
§ 106(3). The first sale doctrine enables an “‘owner of a
particular copy’ of a copyrighted work to sell or dispose of his
copy without the copyright owner’s authorization.” Vernor v.
Autodesk, Inc., 621 F.3d 1102, 1107 (9th Cir. 2010) (quoting 17
U.S.C. § 109(a)). The doctrine “does not apply to a person who
possesses a copy of the copyrighted work without owning it, such as
a licensee.” Vernor, 621 F.3d at 1107 (citing 17 U.S.C. § 109(d)).

“Notwithstanding its distinctive name, the doctrine applies
not only when a copy is first sold, but when a copy is given away
or title is otherwise transferred without the accouterments of a
sale.” UMG Recordings v. Augusto, ___ F.3d ___, 2011 WL 9399, at
*3 (9th Cir.) (citations omitted). However, “not every transfer of
possession of a copy transfers title.” Id. at *4. For instance,
in the context of computer software, “copyright owners may create
licensing arrangements so that users acquire only a license to use
the particular copy of software and do not acquire title that
permits further transfer or sale of that copy without the
permission of the copyright owner.” Id.

In Vernor, a declaratory judgment action, the Ninth Circuit
addressed the resale of copyrighted software on eBay. 621 F.3d at
1103. There, Vernor sought a declaration that he did not infringe
the copyright of Autodesk, a software company. Id. Vernor had
purchased copies of Autodesk’s software from Cardwell/Thomas &
Associates (CTA), one of Autodesk’s direct customers, and then
attempted to resell them on eBay. Id. CTA had obtained the copies
under a software license agreement, which imposed significant
restrictions on their transfer and use. Id. at 1104. Based on
this agreement, the Ninth Circuit rejected Vernor’s assertion of
the first sale doctrine, concluding that neither he nor CTA were
owners of the particular copies. Id. at 1111. The court reasoned
that CTA was only a licensee and that Autodesk retained title to
the software. Id.

Here, Hoops does not plead any facts to suggest that it owned
any of the particular copies of Adobe software that it resold or
that it obtained the copies from entities that had owned them. Nor
does Hoops allege that Adobe ever sold, gave away or transferred
title to the particular copies of the software at issue. Hoops
avers that it resold Adobe products it “purchased from third party
intermediary distributors,” Hoops Countercl. ¶ 8, but offers no
facts regarding under what terms these distributors obtained the
copies. Although it maintains that these copies did not infringe
“Adobe’s right of reproduction,” id., Hoops says nothing about
Adobe’s right of distribution, to which the first sale doctrine
applies.

In lieu of addressing these defects, Hoops offers an
unpersuasive argument that it has not sold Adobe’s copyrighted work
but rather sold discs containing copies of that work. This
attempted distinction illuminates the flaw in Hoops’s theory.
Adobe does not allege that Hoops unlawfully transferred ownership
of Adobe’s copyrighted software. It alleges that Hoops and
Kornrumpf sold copies of Adobe’s software in violation of Adobe’s
exclusive distribution right. To avail itself of the first sale
doctrine, Hoops must demonstrate that it owned the copies of the
Adobe software it resold; it is irrelevant whether Hoops owned the
discs on which the copies were stored. A copyright attaches to an
original work of authorship, not the particular medium in which it
was initially fixed.

Hoops appears to argue that Vernor is distinguishable because
that case involved a license agreement. However, Hoops’s
allegations are not sufficient to determine whether Vernor is
analogous; as noted above, Hoops offers no insight into the
circumstances under which it obtained the copies of Adobe software.

Finally, Hoops alleges that Adobe and SIIA misuse Adobe’s
copyrights because their conduct attempts to hamper competition by
eliminating the secondary market of copies of Adobe software.
However, because Hoops has not established that it, or any other
re-seller, sold copies subject to the first sale doctrine, this
allegation is unavailing. It is not a misuse of copyright to
dismantle a market of allegedly infringing copies of software.

Thus, Hoops fails to allege any facts to suggest Adobe or SIIA
engaged in copyright misuse. For this reason and those stated
above, Hoops’s copyright misuse claims for declaratory relief are
dismissed with leave to amend."

regards,
alexander.

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