Howard Rice Represents Autodesk Before the United States Court of Appeals for the Ninth Circuit

Howard Rice is representing Autodesk in Vernor v. Autodesk, argued before the United States Court of Appeals for the Ninth Circuit on June 7, 2010. The case will determine the scope of a copyright owner's right to retain ownership of copies of its computer software so as to enforce its exclusive distribution and reproduction rights under the Copyright Act. At stake is the software industry's decades-old practice of licensing its software copies on terms that define the permitted uses of the software.

Autodesk's position is that a software licensor retains ownership of its software copies by expressly retaining title to the copies, barring any transfer of the copies, and imposing material restrictions on use of the copies. Every Court of Appeals to have considered this issue has agreed that where a copy of computer software is licensed, with title to the software copy reserved to the copyright owner, the licensee is not an owner of the software copy entitled to the "first sale" rights of Section 109 or the "essential step" defense of Section 117 of the Copyright Act. Vernor and his amici are arguing that software developers should be deemed to have sold their products outright regardless of agreed-upon license terms that specify otherwise.