This is about First Sale Doctrine. And the judge, even while ruling in favor of Vernor, paved the way for an appeal on the grounds that 3 rulings in the Ninth circuit court, a higher court, supported the opposite, that software is indeed licensed.
In other words, Vernor is based on a 1977 precedent about movies (the Wise case), but there exist higher court rulings specifically about software licenses.
This thus proves nothing. Autodesk could've probably appealed. And if Psystar wants to argue First Sale Doctrine for their sale of OS X, they first have to produce financial evidence of even acquiring it in the first place, which they failed to do in discovery. And even if they were to find proof of purchase of OS X, win the First Sale Doctrine point, they then need to fight off the EULA which they broke by installing OS X on non apple hardware.
Guess why they are stalling and dreading the trial in January ? Because it's obvious to them they are losing. Re-filing their dismissed counter-suit in Florida instead of California proves they are desperate.
Re:
Autodesk v Vernor
As I too thought the Autodesk v Vernor set important precedence, casting this case off as unimportant requires some discussion. Since I am not a lawyer, my opinions upon reading the case have no legal importance.
Judge Jones in his 26 page decision discusses precedent, especially with regard to software, policy, piracy, ownership, and legislation. He notes the prior cases of the Ninth Circuit and their contradictory findings. He discusses the distinction between a 'mere license' versus ownership. He cited in a Softman v Adobe court that
Autodesk v Vernor said:
"Merely labeling a transaction as a lease or license does not control. If a transaction involves a single payment giving the buyer an unlimited period in which it has the right to possession, the transaction is a sale. In this situation, the buyer owns the copy regardless of the label the parties use for the contract. . . . The pertinent issue is whether, as in a lease, the user may be required to return the copy to the vendor after the expiration of a particular period. If not, the transaction conveyed not only possession, but also transferred ownership of the copy."
Although that is not the concluding remark of Judge Jones in this case, I argue this conveys in plain language the result. If KnightWRX wishes to explain how Judge Jones has erred, how Wise is poor policy, or that another case establishes a better precedent, we would like to learn of it. Whether Autodesk were to appeal or not is immaterial to this discussion. Autodesk must overcome the finding of policy quoted in the Softman case above. Judge Jones discusses extensively how he came that his conclusion. A mere suggestion that Autodesk could appeal should not imply that the Ninth Circuit court will overrule Judge Jones.
Parenthetically, this case has been written about by bloggers and they present additional commentary germane to this case, its implications, and possible motivations in predicting future actions by Autodesk.
Re: proof of purchase
I confess to being sufficiently cynical to believe that Psystar could and did produce receipts of one or more copies of OS X. However, I suspect this notation is likely a legal subterfuge. It is similar to responses of defense attorneys when subpoenaed for relevant documents. Don't just give the relevant documents, ship a truck of documents and force the opposition to find the relevant material. Readers conclude from the lack of receipts that Psystar has made counterfeit copies of OS X that Psystar delivered to customers. Even I would recognize that Apple could and would press criminal charges and would receive an injunction barring any sales of counterfeit copies of OS X by Psystar. None of that has happened. Apple's lawyers can bury Psystar in a sea of paper, so…?
Re: stalling and dreading
Psystar has not revealed their anxiety or legal tactics to me.
Re: counter-suit in Florida
I have not researched this one, but by my recollection, this is a suit initiated by Psystar against Apple Computer regarding Snow Leopard. Apple Computer chose to separate the unreleased Snow Leopard from findings in their California suit against Psystar. While I will certainly agree this shows a degree of belligerence on the part of Psystar, it should not be surprising that if they think they can win in their counter-suit against Apple for copyright misuse in California, they should pursue a suit with Snow Leopard. I don't understand jurisdiction in this case, but if Apple files in California, should I be surprised that Psystar files in Florida?
