Ninth Circuit Gets Used CDs Right
In a case we had been watching for some time (UMG v. Augusto), the Ninth Circuit finally upheld the district court’s holding that self-serving restrictions placed on so-called “promotional” CDs could not limit the right of the owner of the CD to sell it without permission.
This was refreshing news, given that the Ninth Circuit seems to be somewhat tone-deaf when it comes to the first sale doctrine. Here, although the panel deciding the case followed the ill-conceived test for determining whether a copy is “licensed or sold” (as used in Vernor v. Autodesk), thereby creating a false dichotomy and demonstrating a fundamental failure to understand the difference between “copies” and “copyrights”, this panel at least got it right in the result.