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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010 - page 11 / 12

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  • 6.

    Court rejects § 117 defense because WoW users are licenses, not owners, or their copies of the game client software, citing MAI, Triad, Wall Data. Applying two-part Wall Data test, EULA makes clear that only limited license of copies (and software) is granted, and restrictions placed on transfer of rights under EULA (transfer media, destroy all copies)

  • 7.

    Court declines to follow Vernor in following Wise rather than the MAI triad. Vernor applied § 109, not § 117, and Wall Data is binding precedent for § 117

  • D.

    Vernor v. Autodesk, Inc., 2009 U.S. Dist. LEXIS 90906, 93 U.S.P.Q.2D (BNA) 1336 (W.D. Wash. 2008) (earlier 2008 order at 555 F. Supp. 2d 1164)

    • 1.

      Notes focus in United States v. Wise, 550 F.2d 1180 (9th Cir. 1977), dealing with first sale doctrine, on terms of license agreement, indicia of ownership vs. license of copy.

  • a.

    Non-dispositive indicia of license: reservation of title to CO, restrictions on transfer, requirement of return to CO after limited period, limited grant of rights of use, single up-front payment by transferee

  • b.

    Indicia of ownership: right to retain possession indefinitely, with no right of CO to regain possession (most important); failure to reserve title in CO

  • c.

    Neutral: requirement to destroy copy after use

    • 2.

      Under Wise, Autodesk copies were sold, not licensed

    • 3.

      Notes focus in MAI Trio, dealing with § 117, on deference to CO’s

characterization of transfer agreement as license: MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995); Wall Data Inc. v. Los Angeles County Sheriff's Dep't, 447 F.3d 769 (9th Cir. 2006).

    • a.

      Under MAI Trio, Autodesk copies would have been licensed.

  • 4.

    Text and legislatives histories of §§ 109 and 117 lead to conclusion that “owner” has the same meaning in both.

  • 5.

    Given conflict among precedent, court held that it must follow oldest precedent, i.e., Wise, so initial transaction was sale of copy.

  • 6.

    What about the difference between a film print and a computer program on a CD? Is that relevant to the distinction between sale and license?

  • VI.

    What difference does it make?

    • -

      11 -

Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010

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