[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandal
From: |
Alexander Terekhov |
Subject: |
Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling) |
Date: |
Wed, 08 Dec 2010 16:01:11 -0000 |
No wonder Pee The GPL Girl Jay of grokxxx is celebrating a 'victory'...
Details:
http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/
"Guess What, You Dont Own That Software You Bought
By David Kravets September 10, 2010 | 2:01 pm | Categories: Digital
Millennium Copyright Act, intellectual property
A federal appeals court said Friday that software makers can use
shrink-wrap and click-wrap licenses to forbid the transfer or resale of
their wares, an apparent gutting of the so-called first-sale doctrine.
The first-sale doctrine is an affirmative defense to copyright
infringement that allows legitimate owners of copies of copyrighted
works to resell those copies. That defense, the court said, is
unavailable to those who are only licensed to use their copies of
copyrighted works. (.pdf)
The 3-0 decision by the 9th U.S. Circuit Court of Appeal, if it stands,
means copyright owners may prohibit the resale of their wares by
inserting clauses in their sales agreements.
The terms of the software license in the case are not very different
from the terms of most software licensing. So I think its safe to say
that most people dont own their software, said Greg Beck, the defense
attorney in the case who represented an eBay seller sued by Autodesk.
The other ramification, there is no reason a similar license could not
be put into the cover of a book. It wouldnt be difficult for everybody
to implement this.
Beck said he will ask the San Francisco-based appeals court to rehear
the case with 11 judges.
The Software & Information Industry Association, whose members include
Google, Adobe, McAfee, Oracle and dozens of others, urged the court to
rule as it did. The Motion Picture Association of America also sided
with Autodesk.
The American Library Association and eBay argued against the outcome.
The library association said it feared that the software industrys
licensing practices could be adopted by other copyright owners,
including book publishers, record labels and movie studios.
That assertion was not lost on the appeals court, saying Congress is
free to modify copyright law if it deems these or other policy
considerations
require a different approach.
It was believed to be the first appellate ruling directly addressing
whether a user agreement could forbid resales of software, though the
appellate courts have previously backed companies that have imposed
terms on how software may be used. The decision covers the nine western
states, including California.
The appeals court reversed a lower court judge that said the first-sale
doctrine applied whenever the consumer is entitled to keep the copy of
the work, entitling consumers to resell their purchased software at
will.
The case concerns Autodesks AutoCAD Release 14, which was for sale on
eBay. Autodesk, invoking the Digital Millennium Copyright Act, demanded
eBay remove the item from the site, and it promptly did in 2007.
Timothy Vernor, the seller, who purchased at least four copies of the
software from a company that was required to dispose of the software
under a licensing agreement, re-posted the sale and his eBay account was
terminated after Autodesk complained. Litigation ensued.
Autodesk, of San Rafael, California, imposed a significant number of
transfer restrictions: it stated that the software could not be
transferred or leased without Autodesks written consent, and the
software could not be transferred outside the Western Hemisphere.
The first-sale doctrine of 1909, in its current form, allows the owner
of a particular copy of a copyrighted work to sell or dispose of his
copy without the copyright owners authorization. The first sale
doctrine does not apply to a person who possesses a copy of the
copyrighted work without owning it, such as a licensee, the court
ruled.
Photo courtesy Steve Snodgrass/Flickr
See Also:
Music Labels Copyright Argument is Rubbish
EFF Wonders: Did Obama Violate Copyright Law With iPod Gift
Court: Sewing Patterns are Data, Not Code
Judge Says You Can Sell Your CDs
Another Court Deals Major Blow to DVD Copying
Prosecution Alters Pirate Bay Charges in Bid to Win Conviction"
Posted by: 3D_Life | 09/10/10 | 5:43 pm |
The 3-0 decision by the 9th U.S. Circuit Court of Appeal Well, that
says it all....unanimous. Not one, not two, but three complete
imbeciles sitting on the bench. Sounds like the group W bench from
Alices Restaurant! Someone check their bank accounts for bribery
money... yea, the offshore ones too!"
"Posted by: zothen | 09/10/10 | 9:39 pm |
What idiot judge(s) gave this ruling!!!
The next steps would logically be, every shop selling software is
guilty, because they have bought the software, and are trying to sell it
to some one else! Any one producing the product would have to open shops
every where, or go out of business because they can not sell their
product! Finally ending with no product any where because it can not be
distributed!
caveat emptor!"
"Posted by: bvdon | 09/10/10 | 11:35 pm |
This would kill all used sales of books, software, video games, etc. Can
I sell my used computer with the operating system?"
"Posted by: nouser | 09/10/10 | 4:46 pm |
So if I buy an Apple Macintosh computer whose operating system software
is licensed, not sold, to the user, this would mean that I could not
sell that computer in working order as the OS could not be resold. How
crazy have the courts become? No, dont answer that. I believe we
already have ample evidence that in many cases lately, the courts are
not to be trusted to do the right thing."
"Posted by: chris911ny | 09/12/10 | 10:03 am |
When are we going to have teachers in the schools that teach these
little brats posting comments here how not to be a communist and pay for
what they use? If you guys want to own your software then you will
have to come up with some millions of dollars, then you can do whatever
you want with it. On the other side, if you want to use your free
alternatives then go for the open source stuff or others. The comments
here are not more than a reflection of the deplorable state of the
education in this country now that these kids dont even have an idea of
what is required to produce a piece of work like the products in
question. Yes go and take by force what is not yours you communist
bastards. "
"Posted by: Grashnak | 09/12/10 | 12:09 pm |
The really hilarious part of chris911nys moronic rant is that the
doctrine of first sale relates to private property rights and the whole
underpinning of capitalism. With this court decision essentially taking
away your right to resell something you have purchased we move closer to
a society without private property.
And yet chris accuses those of being against the removal of this private
property right of being communists. Way to look ignorant chris."
"Peldor | a day ago | permalink
Quote:
> The ALA fears that the software industrys licensing practices
> could be adopted by other copyright owners, including book
> publishers, record labels, and movie studios.
I agree. I really wish some popular author would shrink wrap
his/her latest book with a license agreement to show just how
stupid this particular 'digital divide' is."
"Seraphiel | a day ago | permalink
So a seller acting (as far as we can tell) in good faith is
punished by an agreement to which he was never a party.
Simultaneously, this agreement somehow undermines a long-held
protection that a buyer of goods may dispose of those goods
in whatever manner they see fit within the bounds of the law.
> if a company says you don't have the right to resell a
> program, you don't have that right.
This is, more than anything else, a tremendous disincentive
to buy any program thus encumbered."
"jdietz | a day ago | permalink
Previously, the court said to "license a copy" is the same
as selling just one copy. Now they are saying the people he
bought his copies from didn't own those copies. It's
reasonable to believe a defunct architectural firm would be
in possession of copies of AutoCAD and be in a position to
sell them. I think the court is being unreasonable when
they say the architectural firm did not own copies of the
software.
The other thing...
Digital resale is prohibited only when the seller prohibits
it. I see no reason why it would not be prohibited in every
case, since the seller makes more money if resale is prohibited.
Next up:
When you start up your Nintendo Wii game (which is resaleable
now) or other console game, you will start getting click-wrap
licensing agreements prohibiting resale. In actuality, they
won't do that (the cost of the backlash isn't worth the extra
revenue they gain), but they may do it for their next system."
Comments from Pee The GPL Girl Jay's grokxxx blog:
"This is bad, but it's not the last word
Authored by: Anonymous on Saturday, September 11 2010 @ 03:25 AM EDT
Vernor has already announced its intention to ask for an en banc
rehearing. That doesn't mean it will get it, of course, and it
doesn't mean the full panel would rule Vernor's way.*
A Supreme Court appeal isn't a lost cause, either, as the Supreme
Court has protected first sale in its most recent decisions.
Courts have gone up, down, and sideways on EULAs and first sale
with regard to software. Until the Supreme Court weighs in (and
it has not), we still have a shot.
So, to summarize, this ruling is not necessarily even the last
word in the 9th Circuit, and it is certainly not the last word
for the whole country.
---linuxrocks123
*The 9th Circuit has been very hostile to first sale in recent
history. See, for instance, Omega v. Costco, for which the
Supreme Court has granted certiorari."
"Differences between books and software
Authored by: sumnerp on Sunday, September 12 2010 @ 05:24 AM EDT
Perhaps trying to distinguish between a book and software is
why the law in this area seems such a mess? The engineer in
me sees them both as information fixed in a medium for
convenient use.
Both seem to suffer from publishers tying to impose
conditions on purchasers subsequent to purchase. In the UK
publishers seem obsessed with rebinding, and copyright pages
admonish against this and insist that a similar term be
imposed on subsequent purchasers. US publishers don't seem
to share this craze, or perhaps are prohibited from saying
so), but my US copy of A Confederacy of Dunces seems to
attempt to limit fair right uses by allowing quotations only
for review purposes and requiring a license for any
educational copying. Are these restrictions enforceable?
It's not obvious (at least to me) when information is a book
and when it is software. We routinely publish software
source code in book form, is my copy of Lion's Commentary a
book, software or both? What if the book contains code in
machine readable format - bar codes for example? Looking in
the other direction when a literary work is delivered
digitally does it become software, certainly ebook
publishers seem to feel the need for an EULA? I've seen
these attempt to prohibit reading the work aloud - I guess
those who sub-vocalise should consult their lawyers."
"Vernor v. AutoDesk - Vacated (first sale) and remanded (copyright
misuse)
Authored by: Anonymous on Sunday, September 12 2010 @ 01:13 PM EDT
PJ, at most what's happened is a possible breach of contract
between Autodesk and the architect firm. Autodesk should be
suing them for the difference between upgrade and full pricing
for the newer version, not interfering in someone else's
commerce. The Ninth Circuit simply erred."
"Authored by: Anonymous on Sunday, September 12 2010 @ 01:47 PM EDT
PJ, if you obtain goods through legal means (a lease), but
then fail to return those goods per the agreement, you are
maintaining possession illegally, and it is classified under
theft through appropriation via failure to return.
In the US, this is generally a state legal issue, but doing
a google search on "theft failure to return US" will give
you a list of the state statutes.
Since Autodesk didn't require a return of the original
software, "failure to return" is not applicable. So claiming
Vernor was in effect trafficking in stolen goods (first sale
indeed doesn't apply) is not appropriate."
"Ownership
Authored by: Anonymous on Sunday, September 12 2010 @ 04:00 PM EDT
The Ninth Circuit is probably the most overturned court
ever.
The VERNOR v. AUTODESK case is one of those appellate
decisions that
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09
-35969.pdf cries out for reversal. The Ninth Circuit
steadfastly refuses to acknowledge that Congress declared
ownership of material, tangible copies of works are
independent of intangible copyrights. 17 USC § 202 makes
this very clear:
"17 USC § 202.
Ownership of copyright as distinct from ownership of
material object.
Ownership of a copyright, or of any of the exclusive rights
under a copyright, is distinct from ownership of any
material object in which the work is embodied. Transfer of
ownership of any material object, including the copy or
phonorecord in which the work is first fixed, does not of
itself convey any rights in the copyrighted work embodied in
the object; nor, in the absence of an agreement, does
transfer of ownership of a copyright or of any exclusive
rights under a copyright convey property rights in any
material object."
http://www.copyright.gov/title17/92chap2.html
The ownership of material copies of copyrighted works is a
matter soley reserved for state property law. Both Nimmer on
Copyright and the non-precedential Federal Circuit has
pointed to this fact:
"[T]he court's decision has been criticized for failing to
recognize the distinction between ownership of a copyright,
which can be licensed, and ownership of copies of the
copyrighted software. See, e.g., 2 Melville B. Nimmer,
Nimmer on Copyright p 8.08[B], at 8-119 to 1-121 (3d
ed.1997). Plainly, a party who purchases copies of software
from the copyright owner can hold a license under a
copyright while still being an "owner" of a copy of the
copyrighted software for purposes of section 117." DSC COMM.
v. PULSE COMM., 170 F.3d 1354.
http://www.ll.georgetown.edu/federal/judicial/fed/opinions/9
8opinions/98-1024.html
See for example the California Civil Code section 654:
"The ownership of a thing is the right of one or more
persons to possess and use it to the exclusion of others. In
this Code, the thing of which there may be ownership is
called property."
http://law.justia.com/california/codes/2009/civ/654-663.html
Under California law, the right to possess and use material
objects is the equivalent of ownership of that tangible,
material property.
See for example the Washington state law:
"(1) Title to goods cannot pass under a contract for sale
prior to their identification to the contract (RCW 62A.2-
501), and unless otherwise explicitly agreed the buyer
acquires by their identification a special property as
limited by this Title. Any retention or reservation by the
seller of the title (property) in goods shipped or delivered
to the buyer is limited in effect to a reservation of a
security interest. Subject to these provisions and to the
provisions of the Article on Secured Transactions (*Article
9), title to goods passes from the seller to the buyer in
any manner and on any conditions explicitly agreed on by the
parties
(2) Unless otherwise explicitly agreed title passes to the
buyer at the time and place at which the seller completes
his performance with reference to the physical delivery of
the goods, despite any reservation of a security interest
and even though a document of title is to be delivered at a
different time or place; and in particular and despite any
reservation of a security interest by the bill of lading"
http://apps.leg.wa.gov/rcw/default.aspx?cite=62A.2-401 "
"First sale and GPL
Authored by: Anonymous on Sunday, September 12 2010 @ 04:54 PM EDT
The problem is that since the GPL does not specify that
title to the copies made is to be retained by the copyright
proprietor (e.g. all copies made, including copies of
derivative works must be returned to the copyright owner no
later than 10 years after creation), title to the copies
belongs to the licensees who, under the 17 USC 109, is free
to distribute the copies without the authority of the
copyright owner.
"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."
http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-
1141.html "
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.)
- Re: A drunken judge in the SDNY, (continued)
- Message not available
- Message not available
- Buh bye, Chris Ahlstrom, 2010/12/08
- The 9th Circuit just made most of us criminals., RJack, 2010/12/08
- Re: The 9th Circuit just made most of us criminals., David Kastrup, 2010/12/08
- Re: The 9th Circuit just made most of us criminals., RJack, 2010/12/08
- Re: The 9th Circuit just made most of us criminals., David Kastrup, 2010/12/08
- Re: The 9th Circuit just made most of us criminals., RJack, 2010/12/08
- Drunken Ninth Circuit judges, RJack, 2010/12/08
- Re: Drunken Ninth Circuit judges, RJack, 2010/12/08
- Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling),
Alexander Terekhov <=
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), David Kastrup, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), David Kastrup, 2010/12/08
- Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling), Alexander Terekhov, 2010/12/08