Legal Research

9th Circuit Undercuts First Sale Doctrine for Software

By David

On September 10, 2010 the 9th Circuit decided Vernor v. Autodesk, Inc., No. 09-35969 (9th Cir. 2010).  This decision is a blow to an essential copyright legal principle known as the ?First sale doctrine.?  The first sale doctrine is a legal theory that allows purchasers of copyrighted material, in this case software, to assert as a defense to copyright infringement upon the resale of the original copyrighted material. The 9th Circuit in its decision determined that the manufacturer can by including a clause in its software licensing agreement reserving the ownership interest  to itself make the purchaser merely a “licensee.”  The shrink-wrapped software agreement changes the character of the purchased item, it becomes a license to use rather than an ownership interest. This decision will have ramifications for all software and other copyrighted materials if it is allowed to stay unchallenged.  It should be noted that several other Circuits have decided the case  in the opposite direction. Clearly this issue will be decided by the Supreme Court in the future.

To read the opinion go to the Court’s website. [www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-35969.pdf] (Post-David)

Full post as published by Cocky Law Blawg on September 13, 2010 (boomark / email).