Here are two recent U.S. software decisions to note. Both decisions strengthen the hand of software vendors:

1. In a follow-up to our earlier post (Software License Upheld), the Ninth Circuit Court of Appeals decision in Vernor v. Autodesk Inc. has been denied leave to appeal, meaning the US Supreme Court has elected not to review the decision. This case dealt with resales by Vernor of used copies of AutoCAD software. Vernor claimed the resales were permitted under the “first sale doctrine”. The decision stands for the proposition that a software license is an important exception to the “first sale” defence. This is because the court found that Autodesk had not sold copies but merely licensed copies of the copyrighted work. 
2. In another Ninth Circuit decision ( Apple Inc. v. Psystar Corp., 9th Cir. Cal. Sept. 28, 2011), a small computer reseller operated a business re-selling Mac OS X pre-installed into non-Apple computers.  Apple complained that this was an infringement of copyright and a breach of the Mac OS X license agreement. Specifically, Apple’s software license agreement requires Mac OS X users to run their copies only on Apple computers. Psystar raised the defence that this was restrictive and constituted “copyright misuse”. The court sided with Apple, pointing out that to demonstrate “copyright misuse”, the license agreement would have to restrict creativity or restrict competition. In this case, the Mac OS X license agreement did neither. Apple’s license does not restrict a competitor’s ability to develop its own software, nor does it prohibit customers from using non-Apple components with Apple computers. Instead, Apple’s license merely restricts the use of Apple’s own software to its own hardware.

Calgary – 07:00 MDT