Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

[Alexander Terekhov]

(to information@eff.org, action@eff.org, litigation@citizen.org)

A court headquotered in California overruled California Civil Code?

It has been pointed out that Vernor opinion suggesting that Vernor was 
not an owner of copies he bought (suggesting that it was not his 
property) contradicts California Civil Code:

http://law.justia.com/california/codes/2009/civ/654-663.html

"The ownership of a thing is the right of one or more persons to 
possess and use it to the exclusion of others. In this Code, the thing 
of which there may be ownership is called property."

It's unbelievable... simply unbelievable.

Vernor opinion also contradicts the 2nd Cir.

http://caselaw.findlaw.com/us-2nd-circuit/1357970.html

"Several considerations militate against interpreting § 117(a) to 
require formal title in a program copy. First, whether a party 
possesses formal title will frequently be a matter of state law. See 2 
Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.08[B][1] 
(stating that copy ownership “arises presumably under state law”). The 
result would be to undermine some of the uniformity achieved by the 
Copyright Act. The same transaction might be deemed a sale under one 
state's law and a lease under another's. If § 117(a) required formal 
title, two software users, engaged in substantively identical 
transactions might find that one is liable for copyright infringement 
while the other is protected by § 117(a), depending solely on the 
state in which the conduct occurred. Such a result would contradict 
the Copyright Act's “express objective of creating national, uniform 
copyright law by broadly preempting state statutory and common-law 
copyright regulation.” Cmty. for Creative Non-Violence v. Reid, 
490 U.S. 730, 740, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); see also 
17 U.S.C. § 301(a)."

Second, it seems anomalous for a user whose degree of ownership of a 
copy is so complete that he may lawfully use it and keep it forever, 
or if so disposed, throw it in the trash, to be nonetheless 
unauthorized to fix it when it develops a bug, or to make an archival 
copy as backup security.

We conclude for these reasons that formal title in a program copy is 
not an absolute prerequisite to qualifying for § 117(a)'s affirmative 
defense. Instead, courts should inquire into whether the party 
exercises sufficient incidents of ownership over a copy of the 
program to be sensibly considered the owner of the copy for purposes 
of § 117(a). The presence or absence of formal title may of course 
be a factor in this inquiry, but the absence of formal title may be 
outweighed by evidence that the possessor of the copy enjoys 
sufficiently broad rights over it to be sensibly considered its 
owner."

Please appeal to en banc/SCOTUS ASAP!

regards,
alexander.

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