The Ninth Circuit has affirmed a district court decision (reported in this blog) holding that a restrictive software license is not a “sale” for purposes of the federal copyright laws, and that the license could not be used to assert a defense to copyright infringement based on the first sale doctrine. Adobe Systems Inc. v. Anthony Kornrumpf, No. 12-16616 (9th Cir. June 2, 2014).
The operative paragraph of the court’s per curiam three-paragraph opinion explained that, after its de novo review, the Ninth Circuit determined that:
The district court did not err in its application of Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010), to Dell’s and HP’s acquisition of copies of Adobe software products. The original equipment manufacturer contracts specified that Dell and HP were granted licenses, significantly restricted Dell’s and HP’s ability to transfer the software and imposed notable use restrictions. A transfer of software products under these circumstances constitutes a license rather than a sale. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1159 (9th Cir. 2011); MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 938-39 (9th Cir. 2010), as amended; Vernor, 621 F.3d at 1111-12.