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Vernor v Autodesk (9th Cir Sept 2010)

Vernor v Autodesk (9th Cir Sept 2010)

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Published by jlinford
The Ninth Circuit holds that Autodesk transferred its AutoCAD program by license and not by sale. Thus, the first sale doctrine does not apply, and unauthorized resale is copyright infringement.
The Ninth Circuit holds that Autodesk transferred its AutoCAD program by license and not by sale. Thus, the first sale doctrine does not apply, and unauthorized resale is copyright infringement.

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Published by: jlinford on Sep 11, 2010
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10/19/2010

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FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
 
T
IMOTHY
S. V
ERNOR
,No. 09-35969
Plaintiff-Appellee,
D.C. No.v.
2:07-cv-01189-RAJA
UTODESK
, I
NC
.,OPINION
 Defendant-Appellant.
Appeal from the United States District Courtfor the Western District of WashingtonRichard A. Jones, District Judge, PresidingArgued and SubmittedJune 7, 2010—Seattle, WashingtonFiled September 10, 2010Before: William C. Canby, Jr., Consuelo M. Callahan andSandra S. Ikuta, Circuit Judges.Opinion by Judge Callahan
13861
 
COUNSEL
Jerome B. Falk (argued), Clara J. Shin, and Blake J. Lawit of Howard Rice Nemerovski Canady Falk & Rabkin P.C., andMichael A. Jacobs and George C. Harris of Morrison & Foer-ster LLP, for defendant-appellant Autodesk, Inc.Gregory A. Beck (argued) and Deepak Gupta of the PublicCitizen Litigation Group, for plaintiff-appellee Timothy S.Vernor.Randi W. Singer, Mark J. Fiore, and Lisa R. Eskow of Weil,Gotshal & Manges LLP, for amicus curiae eBay Inc.Fred von Lohmann of the Electronic Frontier Foundation andSherwin Siy and John Bergmayer of Public Knowledge, foramicus curiae American Library Association, Association of College and Research Libraries, Association of ResearchLibraries, Consumer Federation of America, Electronic Fron-tier Foundation, Public Knowledge, and U.S. PIRG.
13864V
ERNOR
v. A
UTODESK
, I
NC
.
 
Scott E. Bain, Keith Kupferschmid, and Mark Bohannon, foramicus curiae Software & Information Industry Association.Robert H. Rotstein, Patricia H. Benson, and J. Matthew Wil-liams of Mitchell Silberberg & Knupp LLP, for amicus curiaeMotion Picture Association of America, Inc.
OPINION
CALLAHAN, Circuit Judge:Timothy Vernor purchased several used copies of Autodesk, Inc.’s AutoCAD Release 14 software (“Release14”) from one of Autodesk’s direct customers, and he resoldthe Release 14 copies on eBay. Vernor brought this declara-tory judgment action against Autodesk to establish that theseresales did not infringe Autodesk’s copyright. The districtcourt issued the requested declaratory judgment, holding thatVernor’s sales were lawful because of two of the CopyrightAct’s affirmative defenses that apply to owners of copies of copyrighted works, the first sale doctrine and the essentialstep defense.Autodesk distributes Release 14 pursuant to a limitedlicense agreement in which it reserves title to the softwarecopies and imposes significant use and transfer restrictions onits customers. We determine that Autodesk’s direct customersare licensees of their copies of the software rather than own-ers, which has two ramifications. Because Vernor did not pur-chase the Release 14 copies from an owner, he may notinvoke the first sale doctrine, and he also may not assert anessential step defense on behalf of his customers. For thesereasons, we vacate the district court’s grant of summary judg-ment to Vernor and remand for further proceedings.
13865V
ERNOR
v. A
UTODESK
, I
NC
.

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