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 ASSOCIATIONS MOTION TO DISMISS HOOPS ENTERPRISE, LLCS 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 owners 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 Autodesks software from Cardwell/Thomas & Associates (CTA), one of Autodesks 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 Vernors 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 Adobes right of reproduction, id., Hoops says nothing about Adobes 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 Adobes copyrighted work but rather sold discs containing copies of that work. This attempted distinction illuminates the flaw in Hoopss theory. Adobe does not allege that Hoops unlawfully transferred ownership of Adobes copyrighted software. It alleges that Hoops and Kornrumpf sold copies of Adobes software in violation of Adobes 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, Hoopss 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 Adobes 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, Hoopss copyright misuse claims for declaratory relief are dismissed with leave to amend." regards, alexander. -- http://gng.z505.com/index.htm (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.) _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss