On Monday, December 16, 2013 5:55 PM Bruce Perens wrote: > In the U.S., we can apply the finding in the 9th Circuit appeal of Vernor v. > Autodesk.
> The software is licensed, and the owner of the vehicle is never the owner of > their copies. The owner's transfer of the vehicle and its embedded software > to another party is effectively a transfer of the license rights, > which can > only be done by the copyright holder or by a licensee within the terms of the > license. Vernor did not involve embedded software. Bruce - I think you overstate the clarity of US law regarding the applicability of the first sale doctrine to resales of goods containing embedded software. The application of Vernor to resales of goods containing embedded software was undermined by the recent decision of the Supreme Court in Kirtsaeng v. John Wiley. That decision implies (without much analysis) that the first sale doctrine may apply to such resales. The Supreme Court wrote, directly addressing the case of automobiles: Technology companies tell us that "automobiles, microwaves, calculators, mobile phones, tablets, and personal computers" contain copyrightable software programs or packaging .... Many of these items are made abroad with the American copyright holder's permission and then sold and imported (with that permission) to the United States. ... A geographical interpretation [EG: which was not adopted by the Supreme Court] would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software. Yet there is no reason to believe that foreign auto manufacturers regularly obtain this kind of permission from their software component suppliers, and Wiley did not indicate to the contrary when asked.... Without that permission a foreign car owner could not sell his or her used car. I would be happy to hear others' thought on this matter, especially if they disagree with my analysis. Thanks, Eli Greenbaum Technology & Intellectual Property Group [cid:[email protected]] 22 Rivlin Street, Jerusalem 9424018, Israel Tel: (+972) 2 623 9200 | Fax: (+972) 2 623 9345 www.arnon.co.il<http://www.arnon.co.il> | [email protected]<mailto:[email protected]> | View Profile<http://www.arnon.co.il/content/greenbaum> ________________________________ This e-mail message and any files transmitted with it are subject to attorney-client privilege, and are intended only for the person(s) to whom this e-mail is addressed. If you have received this e-mail message in error, please notify the sender immediately by telephone or e-mail and destroy the original message without making a copy. Thank you. [cid:[email protected]] Please consider the environment before printing this email.
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