Re: [dvd-discuss] Interesting 1st sale-shrinkwrap-EULA-(c) infringementcase

[Michael.A.Rolenz(at)aero.org]

This one is just full of good material....

<snip>

In short, the terms of the Adobe EULA at issue prohibit
licensees from transferring or assigning any individual Adobe
product that was originally distributed as part of a Collection
unless it is transferred with all the software in the original
Collection. This license provision conflicts with the first sale
doctrine in copyright law, which gives the owner of a particular
copy of a copyrighted work the right to dispose of that copy
without the permission of the copyright owner.

<deleted>

Adobe frames the issue as a dispute about the ownership of
intellectual property. In fact, it is a dispute about the
ownership of individual pieces of Adobe software. Section 202 of

<snip> and this one is really good....it looks like a dog, barks like a 
dog then it must be a dog!

The Court finds that the circumstances surrounding the
transaction strongly suggests that the transaction is in fact a
sale rather than a license. For example, the purchaser commonly
obtains a single copy of the software, with documentation, for a
single price, which the purchaser pays at the time of the
transaction, and which constitutes the entire payment for the
license." The license runs for an indefinite term without
provisions for renewal. In light of these indicia, many courts and
commentators conclude that a "shrinkwrap license" transaction is a
sale of goods rather than a license.12

<snip>

and it just keeps going on...this is incredible!




"James S. Tyre" <jstyre@jstyre.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
11/01/01 07:42 AM
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        Subject:        [dvd-discuss] Interesting 1st sale-shrinkwrap-EULA-(c) infringement case


COURT TACKLES CHARACTERIZATION OF SOFTWARE SALES
BNA's Electronic Commerce & Law Report reports on Softman
Products v. Adobe Systems, a recent case in which a federal
court in California ruled that a transaction in which a
software developer transfers copies of software to a
retailer is a sale of goods and not a licensing of
intellectual property, regardless of the existence of a
shrinkwrap license stating otherwise.  The court also ruled
that allowing a software developer to eliminate the buyer's
first sale rights by license would violate public policy by
changing the balance of rights struck by federal
intellectual property law.  Article at
<http://pubs.bna.com/ip/BNA/eip.nsf/id/a0a4w8j0a7_>
For a free trial to source of this story, visit
http://web.bna.com/products/ip/eplr.htm
Decision at
<http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac
6f9/574aa79ff518021188256aed006ea2dc/$FILE/CV00-04161DDP.pdf>

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