Friday, September 17, 2010

Prolix 9th decision on copyright “first sale” defense

Whatever happened to the kind of pithy opinions that old-timey jurists like the Hand cousins used to write?

It recently took the Ninth Circuit 26 pages to decide whether a software transaction was a sale or a license for purposes of “first sale” defense to a claim of copyright infringement. The written agreement (1) recited that the copyright owner retained title; (2) stated that the transaction conveyed a nonexclusive, nontransferable license; (3) imposed substantial restrictions against transfer; (4) imposed substantial use restrictions; and (5) provided for license termination if the licensee doesn’t comply with certain provisions. Walks, quacks, and looks like a license to me. Vernor v. Autodesk, Inc., No. 09-35969 (9th Cir. Sept. 10, 2010).

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