Copyright

OMG its OEM!

Stealing intellectual property is an American pastime. Music, software, ebooks, you name it—free is the right price. And mounds of shaming and litigation has done little to discourage the copyright abolitionists.

And then there is Joshua Christenson. He operated a website that offered discounted versions of Adobe software. These were not illegal copies, but actual Adobe products purchased from third parties.

Of course, Adobe was not happy about this. How could Christenson sell these products when the original license prohibited downstream sales?

So, Adobe filed suit. The only problem was that Adobe forgot to bring the actual licenses to the dance! Instead, it submitted license templates and testimony as to how Adobe routinely licenses software.

Christenson argued that he had every right to sell the software under the “first sale doctrine.” This statute allows someone who owns a particular copy to sell it to anyone they choose. Without this doctrine, I would be unable to add to my collection of Archies and Chipmunks recordings. Que triste.

But, to own something, there must be a sale, not a license. Adobe pounded a dent in the podium arguing this was no sale–just a license that prohibited downstream sales. And, that was probably right.

But, Adobe forgot to bring the licenses to the dance.

So, the judge agreed that Christenson met his initial burden of proving he owned the copies. The burden then shifted to Adobe to prove that Christenson was bound by its license.

But, Adobe forgot to bring the licenses to the dance. Christenson wins.

Adobe also asserted a trademark infringement claim. These can arise when someone illegally copies software and tries to pass it off as the real deal. But, what Christenson sold was the real deal–original Adobe software. Christenson 2, Adobe 0.

Here’s a picture of Christenson when he heard the good news:

laptop cartoon character with face hands

From reading the opinion, it appears that Adobe made litigation blunders. I have no idea why the licenses were not attached to the complaint, or why unfair competition claims were missing.

You can read the opinion here.  It is relatively short, and has nice discussions of the first sale doctrine and the fair use of trademarks. I think you can even download it in .pdf!

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Just Add Nuts

Sooner or later, all litgators encounter pro se opponents who make them blow a brain gasket.

Meet Banana Lady. She delivers singing telegrams in full fruitcake fruit costume, then sues anyone everyone who records her performance. Sanctions do not deter her, and she appeels appeals if she loses.

Here is a unanimous (not banana split) decision from the 7th Circuit where Judge Posner tells Banana Lady to quit monkeying around. Nice nuts-n-bolts discussion of copyright principles, then Posner delivers a delicious tongue lashing to La Senora Plátano.

Image

A little dab will do ya!

Normally, copy someone else’s original work and Peter Private Process Server is Googling your home address. However, did you know that the judge may deal you a get-out-of-jail-free card if you only copy a dab? Dippity Doo-dah!!!!

This defendant copied 12-14 practice exam questions from a competitor’s test that contained over 1000 questions. The trial judge said this was just a dab and plaintiff needed to get out of defendant’s hair. The copying was de minimis, and the copyright world is jiggy with it, I guess.

The opinion has a nice discussion of the de minimis doctrine and cites the famous Beastie Boys case:

http://business.cch.com/ipld/louisianaVamerican.pdf