Linked by Thom Holwerda on Wed 8th Sep 2010 22:09 UTC
Hardware, Embedded Systems There's this hole here at OSNews, a hole left when Psystar was dealt a devastating blow by Apple's legal team. That whole saga provided a nice steady stream of news articles that's been dried up for a while. However, Psystar was not the only clone maker out there - what happened to Quo Computer, that clone maker with an actual real-world store front? They're still here, and just launched a new product.
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The 9th circuit court today overturned the Autodesk ruling saying that the first sale doctrine is "unavailable to those who are only licensed to use their copies of copyrighted works." And that "[w]e hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense."

Just to make this a little more clear, EULAs are now, by default, valid if you are in the 9th circuit of the United States unless/until the Supreme Court overturns the 9th circuit or Congress amends the law. Seeing that Quo is in California they can now be sued by Apple for copyright infringement, contributory copyright infringement, DMCA and breach of contract and between the Psystar case and Autodesk they will win on all of those counts.

Also, this ruling makes most of what is in my prior two posts above irrelevant since all of 17 USC 117 no longer matters since every commercial software publisher claims they license their software.

You can read the ruling yourself here:

Edited 2010-09-10 21:57 UTC

Reply Score: 2

rhavyn Member since:

I'm still reading the opinion in detail, but footnote 13 stands out to me with respect to many arguments made here. Specifically the 9th circuit said

"It may seem intuitive that every lawful user of a copyrighted software program, whether they own their copies or are merely licensed to use them, should be entitled to an “essential step defense” that provides that they do not infringe simply by using a computer program that they law- fully acquired. However, the Copyright Act confers this defense only on owners of software copies. See 17 U.S.C. § 117. In contrast, a licensee’s right to use the software, including the right to copy the software into RAM, is conferred by the terms of its license agreement."

In other words, if the software comes with an EULA then you have no right to make any copies of the software without permission in the EULA. That means, you can't install it, you can't run it (because running it copies it into RAM), you basically can just sit and stare at the shiny side of the CD.

The 9th circuit contines by pointing out that the Congressional Record upholds their reading of copyright law (H.R. Rep. No. 94-1476, at 79 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5693). The 9th circuit continued by saying:

"The report also asserts that the first sale doctrine does not “apply to someone who merely possesses a copy or phonorecord without having acquired ownership of it.” Id.""

Edited 2010-09-10 22:12 UTC

Reply Parent Score: 2