The First Sale Doctrine #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

A copyright is a bundle of exclusive rights, including the right to make copies of an item, However, once someone purchases a copy of a copyrighted work, the purchaser owns that specific copy of that work. For example, if Ann purchases a copy of Bob’s book, Ann may not make copies of that book, but she may resell the specific copy she purchased without fear of infringement.

This gets a bit more complicated with respect to the resale of software. Most software comes with a “shrinkwrap license,” which is a contract packaged with the software. Under the terms of such a contract, just using the software is considered acceptance of the terms of that contract, and those terms indicate that software is merely licensed to rather than owned by the purchaser. If there isn’t actually a sale, then does the “no transfer” clause in the license prevent resale?

In Vernor v. Autodesk, Inc., Vernor was reselling unused copies of Autodesk’s “Release 14” auto-cad software on eBay. In determining that Vernor was a licensee rather than an owner of a copy, the Court developed and applied a three-part test: (i) whether the copyright owner specifies that a user is granted a license; (ii) whether the copyright owner significantly restricts the user’s ability to transfer the software; and (iii) whether the copyright owner imposes notable use restrictions.

Note that this is an exception applicable to digital works. In the context of nondigital, copyrighted works, the first-sale doctrine still applies but may be limited in cases involving illegally obtained goods. If you steal it, you can’t resell it.

Summary

  1. Once you purchase a copy, the First Sale doctrine allows you to dispose of that particular copy as you see fit.
  2. Most software is licensed, not sold, so the First Sale doctrine doesn’t apply.
  3. You can’t rely on on the First Sale doctrine when selling stolen goods.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Good (Meh) Watch: Space Force @SteveCarell @LisaKudrow @dianasilvers13 @FunnyAsianDude @rejectedjokes @netflix #GoodWatch #SpaceForce #QuarantineLife

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With much fanfare, Netflix just released season 1 of Space Force. It has some good star power (pun intended), including Steve Carell in the lead, John Malkovich, and Lisa Kudrow.

Malkovich is brilliant as usual, and as I’ve discussed before; Carell’s moving explanation as to why we have an expensive space program should shut people up about it (it won’t); and I love when the episodes are only (just over) 30 minutes each — I watched all 10 episodes in less than 12 hours — but I’m afraid that my opinion goes south from there. I was really looking forward to this show, but it just fell flat for me. It has some funny moments sprinkled in, but over all I thought the humor was ho-hum. I also imagine that, much like an attorney watching a legal drama or a doctor watching a medical drama, anyone with even basic understanding of the real U.S. Space Force or space travel will develop a nervous twitch from the inaccuracies. On this I say, it’s a comedy. Just roll with it.

More importantly, I didn’t care about the characters. There are very few criticisms worse than that. I really don’t care if Steve Carell’s General Naird, or the Space Force in general, succeeds at anything. Lisa Kudrow is reduced to a very minor supporting role, which I found as confusing as it was unnecessary. Maybe in the real world she didn’t want to commit to the schedule for filming, but if there isn’t a real world explanation, then I don’t understand why she was marginalized. In fact, we don’t even know why she was marginalized within the story. (I’m avoiding spoilers here.) She was my favorite “Friend,” and she’s really funny. She also provides the only scene in the entire season where I actually care about the characters. The one and only thing that’s good about her limited presence is that it sets up the possibility of a great dynamic between General Baird and his daughter, Erin, but the writing (not the actors) drops the ball on that. In fact, there’s little purpose to Erin’s character in the show at all.

Being a Silicon Valley fan, I’m happy to see Jimmy O. Yang  getting a good gig eventually with significant time on screen, but his role is more straight than funny. Ben Schwartz plays the same character he plays in absolutely everything else he does. I loved him in Parks & Recreation, but he didn’t get enough air time in that show for it to get old. It’s certainly gotten old seeing that actor play that role with an almost constant presence.

Then there’s Fred Willard playing General Naird’s father. Considering Mr. Willard just died, that was sad, but it also gave you reason to watch.

According to Rotten Tomatoes, the critics panned it (36%), but the audience like it a lot (71%), so as always, YMMV. I hate that I agree with the critics. I guess I must have died inside recently.

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Good Watch: Apollo 18 @HWarrenChristie @RyRobbins @netflix #GoodWatch #QuarantineLife

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I saw a video on YouTube entitled, Alien Movies on Netflix That Should Be Required Viewing. It’s over 11 minutes long, so you may want to read the rest of this post before deciding whether to watch it.

Of the movies suggested, I had seen a few already, and have since seen a few more. I have to say that the list is, at best, hit or miss. That said, Apollo 18 was pretty good.

In the real world, Apollo 18 was cancelled for budgetary reasons. This movie presumes that was a cover up, and that the mission went forward. Here’s the short description:

Apollo 17 was the last U.S.-sponsored lunar voyage — or was it? Hours of found footage, classified for decades, point to a subsequent moon mission — Apollo 18 — that ended very badly. Astronauts John Grey (Ryan Robbins), Nathan Walker (Lloyd Owen) and Benjamin Anderson (Warren Christie), on a mission to install radar scanners, discover a Soviet space capsule nearby. The men also discover a dead cosmonaut, and unfortunately for them, learn how he died.

I think that pretty much sums it up. I’m not a huge fan of “found footage” films, but this premise intrigued me, and I enjoyed the movie. It’s just under 90 minutes long.

As always, YMMV.

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Good Watch: What We Do in the Shadows @Natasia1andonly @porksmith @m_proksch @HARVEYGUILLEN @DougJones @TaikaWaititi @hulu #GoodWatch #QuarantineLife

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What We Do in the Shadows isn’t the kind of show I would have expected to like. I liked Galaxy Quest because it made fun of my favorite intellectual property, Star Trek, but I’m no into horror movies at all, so I didn’t expect this to appeal to me. However, after the first few episodes, I found it hilarious, which is unsurprising considering Taika Waititi’s warped brain is behind it. Kayvan Novak absolutely steals the show, but the entire cast has some great moments. 

WWDitS airs on Hulu, with new episodes every Thursday night. Catching up would be a snap, as each episode is less than 30 minutes long. That makes it easy to sneak in an episode whenever you have a moment. Plus, each season is only 10 episodes long, and they haven’t finished the second season yet.

As always, YMMV.

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Trademark and Laches: Enforcing Your Trademark #trademark #ip

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If trademark holders don’t maintain control over their marks, the law dictates that they’ll lose them. This results in some pretty aggressive behavior by mark holders that is often unfairly criticized by the public. The public needs to understand that businesses often can’t afford to lose that investment.

A trademark or service mark is a right to exclude competitors from using a catch phrase, logo, or other brand identifier (or one that’s confusingly similar) in connection with the competitor’s goods or services. A mark’s distinctiveness is defined by how strongly that association between the mark and the goods or services is to the average consumer. The distinctiveness of a mark can be derived from its very nature (e.g., how catchy it is), but also from its frequent and consistent use. That is, having a constant reminder of the association . Obviously, if a competitor uses that mark (or one confusingly similar), the mark will lose its distinctiveness. Because the purpose of granting the mark is not to reward the mark holder, but rather to provide the general public with a means to tell one brand from another, a mark that has no distinctiveness is useless. Accordingly, it’s well-settled that doctrine of laches applies to marks (unlike copyright). Laches commands that an unreasonable delay in enforcing one’s rights will result in a loss of those rights, so if mark holders don’t send out cease-and-desist letters and/or sue infringers, they’ll lose their investment and possibly have to start over again.

Mark holders are in a catch-22. If they pursue infringers, they’re characterized as heartless, greedy money-grabbers, but if they don’t, they could lose a lot … maybe everything. The truth is often somewhere in between those two extremes. As Mr. Vargas says, have a heart.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

90s Movies v. 80s Movies #QuarantineLife #movie

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Quarantine life has me watch a ton of movies. Many are repeats, but even more are new to me. Of the latter set, quite a few are movies I never saw when they first came out, going all the way back to childhood (e.g., Taxi Driver). This past weekend, I watched Grosse Point Blank (1997) for the first time, which gave me a thought. I’ve noticed that 90s movies seem to hold up far better than 80s movies, and I’m not sure why. Is it because the filmmakers of the 90s were better at their craft, or is it because I’m more emotionally attached to the 90s? The latter makes more sense, but it could actually be both. Note: For the purposes of this post, my definition of “hold up” is I like the 80s or 90s movie even though I’ve seen it for the first time within the past 10 years. An equally interesting definition is Later generations like the movie. I’m curious as to whether any of you have had the same experiences in that regard as I did.

Is It Me?

I always try to place my bias in check, and I certainly have a bias when it comes to the 90s. Movies from a shared era follow similar themes, so a movie from a given era can often represent that era well. I don’t want to bring down the conversation, but to address this I have to point out a few things. My childhood wasn’t exactly happy, nor were my high school of college years. They were actually quite miserable, and I haven’t maintained the few, weak friendships I had from those eras. If it weren’t for Facebook, I would never have heard from them again, and that’s the extent of our relationships to this day. In fact, I have better online relationships with people I’ve never met. On the other hand, I finally had the “college experience” when I attended law school in my late 20s to early 30s. That was 1996-2000, and it was literally the best time of my life. I have close friendships with the people I met there, and whenever I drop into Chicago, my schedule is packed. This could certainly affect how I view movies from that era.

The Case Against the 80s

The best way to assess which decade holds up better is by watching movies for the first time at a much later date. I missed a ton, but I’m sure all of you missed at least a few. A good example of a cult classic that I didn’t see until after 2010 is Ferris Bueller’s Day Off. I don’t want to rain on your respective parades, but that was some stupid shit. To start, because of a scene appearing in the script that never made it to the screen, we know how Ferris financed this remarkably expensive day: He stole his parents’ bonds and cashed them in. I already hate this punk, though it wasn’t on screen, so perhaps we should ignore that one. That’s fine, because the dumbest part about the movie it its lesson. If you give it some thought, the moral of the story is “If your father claims you’re too irresponsible to drive his expensive sports car without destroying it, teach him a lesson by stealing the car, irresponsibly destroying it, and taking out a large percentage of his house along with it. That’ll show him!

Only a kid in high school could get behind that.

Seriously, that’s stupid, but I fully expect you to like it if A) you’re in high school, or B) you first saw the movie when you were in high school. This is one of many examples of 80s movies I didn’t see until my 40s or later.

Other examples: The Dark Crystal (1982), Willow (1988)

Notable exception: The Princess Bride (1987). That holds up as well as any movie in history.

The Case for the 90s

The Big Lebowski. QED.

Alright, alright; here’s a little more. I first saw that movie about 5 years ago (2015 or so). It’s one of the funniest movies I’ve ever seen, and for a comedy to be funny to a later generation (which I effectively represent) says a lot about how well it was made. Usually, the joke gets lost on future generations. Dramas aren’t immune to this effect either. Grosse Point Blank did not evoke any emotional effect (other than some of the music), but I still enjoyed it more than I do most 80s movies.

Notable exception: American Pie (1999). Even though I still find the film funny, the surveillance scene doesn’t hold up well at all, though I understood that when I first saw it. I was in law school at the time and thought, “Everyone involved should go to jail.”

Facts are facts, but there’s no escaping the emotional bonds you have to media. Sometimes facts and emotional bonds are in sync. I suspect they are here. The 90s win.

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Good Watch: F Is for Family @billburr @netflix #GoodWatch #QuarantineLife

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F Is for Family is the R-rated brainchild of my favorite active comedian, Bill Burr. There are currently three seasons posted on Netfilx, with the fourth set to be released on June 12, 2020. It’s a sitcom about middle-class, suburban America in the 70s.

Mr. Burr isn’t even a month younger than I, so he’s writing a story that I’ve lived as well, and thus is something to which I relate. There are other parallels to my personal life. Half of my family tree is essentially Irish and Scottish, and my nuclear family consists of an eldest son, a middle-child son (me), and a youngest daughter. For about a decade, until my younger brother came along, that was my family’s dynamic. The middle-child in the show is named Bill, leading me to believe that Mr. Burr, like me, is the middle child.

By the start of season 3, the father’s yelling seemed to get more annoying than funny. I’m not sure if  that’s because it grew old or if the scripts changed, but that’s the only thing I don’t like about this series.

I don’t know if I like this show because I related to a lot of it, but Bill Burr has a large fan base. If you’re a part of it, you may like it too.

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Casey Biggs and Star Trek: Deep Space Nine @netflix @arenastage #QuarantineLife #StarTrek #DS9

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My favorite movie and television property is Star Trek. I wasn’t fond of Star Trek Into Darkness but otherwise am an apologist for the property. However, Star Trek Deep Space Nine wrapped up while I was in law school, so it’s the only series for which I haven’t seen all the episodes. I’m currently remedying that situation by watching seasons 6 and 7.
There’s nothing I can say about the series that hasn’t been said before. Instead, I’ll mention a personal anecdote. I’ve been attending the theater since I was 5 years old, so over 4 decades. However, it wasn’t just any theater; it was Arena Stage. Arena is high-quality theater. I can’t tell you how many now-famous actors I’ve seen cut their teeth at Arena, as well as stop by for a visit after getting their big break.

So, when I saw that Casey Biggs had joined the cast of Deep Space Nine as Damar, I was thrilled. Mr. Biggs has a history with Arena. He was the first actor I had ever seen on TV (L.A. Law) that I first saw at Arena. My favorite two roles for him were that of Odysseus in Homer’s Odyssey and Petruchio in Taming of the Shrew. He appears to be assigned to soap opera hell but consistently gets one-shot roles on prominent TV shows.

He remains an obscure actor, but I’ve paid attention and appreciate what he’s done through these years.

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Good Watch: #Dolemite Is My Name @netflix #GoodWatch #QuarantineLife

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Dolemite Is My Name has been on my list since it came out, but I never got around to seeing it. Enter SARS-COV-2. It’s the story of Rudy Ray Moore, who made and released his first blaxploitation film, Dolemite, in 1975. I’d never heard this story and have never seen any of the Dolemite movies. It was a good blend of funny and serious. It showed how difficult it was for Moore and others in 70s America but kept it lighthearted. At times, it was even inspirational.

I wasn’t the target demographic for blaxploitation films, but this story still appealed to me. As always, YMMV.

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Guilty Pleasure: Star Trek: Nemesis @SirPatStew @BrentSpiner @jonathansfrakes @gates_mcfadden @Marina_Sirtis @DinaMeyer @startrekcbs #GuiltyPleasure #QuarantineLife #StarTrek

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B-4 | Memory Alpha | Fandom
Star Trek X: The Search for Data

Rotten Tomatoes reports scores of 38 from the critics (who I don’t care about) and 49 from the audience, both of which are rotten scores. Nemesis is certainly a guilty pleasure, and I get that. Troi porn, a childish android, and the worst toast in the history of weddings are just a few of the examples of why this movie earned such low scores, but it had some good points. Moral philosophy is the foundation upon which Star Trek was built, and at its heart, it was an examination of the nature v. nurture debate. Nevertheless, it didn’t skimp on the action.

The goal of the movie was to recapture the magic of Star Trek II: The Wrath of Khan by giving Picard a fitting nemesis, just as Wrath of Khan gave Kirk his, and by having Picard suffer a loss as did Kirk. Nemesis is no Wrath of Khan, and Shinzon is no Khan, but SPOILER ALERT being Picard’s clone inherently made Shinzon a good match for Picard, and Shinzon’s lifetime of pain resulted in a rage mimicking that of Khan. Data’s death also mimicked Spock’s. I didn’t find this to be lazy plagiarism as it’s sometimes been labeled. There are only seven stories, and this story used the themes that have been proven to appeal to Star Trek fans (and non-fans).

The movie also set up the Picard series in a couple of ways. It set the foundation for Picard’s connection to the Romulans, and Picard resolved Data’s story without cheapening his death in Nemesis.

Sprinkle in the fact that I’m a Star Trek apologist, and I like this movie. You don’t have to.

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