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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010 - page 3 / 12





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  • implied license is granted when (1) someone requests creation of

a work, (2) creator makes and delivers the work, and (3) creator intends that the -requestor copy and distribute work or, in the case of a computer program, use, retain and modify the work -- “relevant intent is the licensor's objective intent at the time of the creation and delivery of the software as manifested by the parties' conduct” -- license irrevocable because consideration was paid


Similarly, Intelligraphics, Inc. v. Marvell Semiconductor, Inc., No.

07-2499, 2009 U.S. Dist. LEXIS 2009)

9875 (N.D. Cal. Jan. 28,

First Sale Doctrine

  • A.

    Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908)

    • 1.

      Applying pre-1909 copyright law

    • 2.

      “ . . . the copyright statutes . . . do not create the right to impose, by notice,

such as is disclosed in this case, a limitation at which [copies of] the book shall be sold at retail by future purchasers, with whom there is no privity of contract.” (350)


In selling a copy, copyright owner (CO) “has exercise the right to vend.” (351)

    • a.

      CO owns the intangible copyright, buyer owns the tangible copy

  • 4.

    Adding the right to control all future retail sales would extend a right under the statute “beyond its meaning” in light of legislative intent (351)

  • 5.

    See, e.g., Harrison v. Maynard, M. & Co., 61 F. 689 (2d Cir. 1894) (“the copy having been absolutely sold to him, the ordinary incidents of ownership in personal property, among which is the right of alienation, attach to it”); Independent News Co. v. Williams, 293 F.2d 510 (3d Cir.

    • 1961)

      (first sale doctrine applies to comic books with covers removed sold

to trash company that resold them)

  • B.

    Incorporated in 1909 Act and 1976 Act, 17 U.S.C. § 109(a)

    • 1.

      Under § 109(a), “[n]otwithstanding the provisions of section 106(3),”(i) the “owner” of a copy (ii) “lawfully made under this title,” (iii) may “sell or otherwise dispose of the possession” of that copy

  • a.

    Copy may be freely transferred, but other legal restrictions remain,

  • e.

    g., cannot hit someone with it, cannot make another copy from it

  • -


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

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