Tabberone Logo

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me!
"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


We have downloaded the various documents from the District Court Western Disctrict of Washington web site. They are all in PDF format. Case 2:07-cv-01189-RAJ. We do not have all documents filed, only those we considered relevant.

First Amended Complaint, filed November 11, 2007.

Second Amended Complaint, filed November 20, 2007.

Affidavit of Evelyn LaHaie, filed January 15, 2008. She was the Enforcement manager in the License Compliance Department for Autodesk.

Affidavit of Lawrence K. Rockwell, filed January 15, 2008. Partner in the firm of Donahue Gallagher Woods LLP.

Autodesk Motion To Dismiss, filed February 8, 2008.

Vernor Opposition to Motion To Dismiss, filed February 21, 2008.

Replt to Motion To Dismiss, filed February 29, 2008.

Autodesk Reply to Opposition, filed February 29, 2008.

Court Oder Denying Autodesk's Motion To Dismiss, filed May 20, 2008. The court noted that Autodesk terminated an eBay auction by Vernor in 2005. Vernor filed a counter notice to which Autodesk (through their idiot attorney Andrew McKay) never responded. The auction was reinstated by eBay. The court stated:

"In 2007, Mr. Vernor bought four authentic, used AutoCAD packages from an office sale at Cardwell/Thomas Associates (“CTA”), a Seattle architecture firm. Mr. Vernor sold three packages on eBay, but each time he put a package up for auction, an exchange of DMCA notices from Autodesk, suspension of the auction by eBay, counternotices from Mr. Vernor, and reinstatement of the auction followed. When Mr. Vernor attempted to sell the fourth AutoCAD package, Autodesk filed another DMCA notice, and eBay responded by suspending Mr. Vernor’s eBay account for one month for repeat infringement."

[page 2] emphassis added

Autodesk attempted to minimize the effects of its actions. However, the court disagreed:
"The harm is twofold. First, Autodesk delays his eBay auctions by posting DMCA notices, forcing him to issue counter-notices to reinstate the auctions. Second, Autodesk’s repeated notices resulted in a one-month suspension of Mr. Vernor’s eBay account, and a resulting temporary inability to engage in his business. Mr. Vernor fears that Autodesk will repeat this conduct. On the record before the court, that fear is well-founded. Moreover, an Autodesk attorney threatened to “take further action” against Mr. Vernor if continued to sell AutoCAD packages. Under these circumstances, Mr. Vernor’s declaratory judgment claim presents a controversy of sufficient immediacy.

Autodesk’s additional contention that Mr. Vernor’s harm flows from eBay’s policies rather than Autodesk is specious. See Autodesk Mot. at 17. EBay would have taken no action against Mr. Vernor but for Autodesk’s allegations. There is no basis to blame eBay for the consequences of Autodesk’s copyright enforcement efforts."

[page 5-6]

Autodesk Motion For Summary Judgment, filed February 20, 2009.

Declaration of Professor Raymond Nimmer supporting the Autodesk Motion For Summary Judgment, filed February 20, 2009. Based upon the wording of the Court Decision rendered September 30 (see below), it appears that Raymond Nimmer will whore out his services to the highest bidder. The Decision states:

"Autodesk retained professor Raymond Nimmer as an expert witness. Mr. Nimmer provided two declarations in support of Autodesk’s summary judgment motion." [page 3]

"Its expert witness, Mr. Nimmer, argues that software companies take a restrictive view of whether they transfer ownership of software companies." [page 15]

"While Autodesk asks the court to defer to Mr. Nimmer’s views, it does not acknowledge that those views have proven malleable. In SoftMan Prods. Co. v. Adobe Sys. Inc., 171 F. Supp. 2d 1075, 1089 (C.D. Cal. 2001), the court concluded that a software manufacturer transferred ownership of copies of its software despite its claim that it had merely licensed their use. The

SoftMan court noted that numerous commentators had taken the same position, including Mr. Nimmer:
"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. Id. at 1086 (citing Raymond T. Nimmer, The Law of Computer Technology § 1.18[1] p. 1-103 (2d ed. 1992)). In DSC Commc’ns Corp. v. Pulse Commc’ns, Inc., 170 F.3d 1354 (Fed. Cir. 1999), Mr. Nimmer was of counsel to the party in Mr. Vernor’s position, claiming to have acquired ownership of a copy of copyrighted software. The DSC court, citing a later edition of the treatise cited above, dismissed Mr. Nimmer’s view of licensing as “overly simplistic.” Id. at 1362. (citing R. Nimmer, The Law of Computer Technology § 1.24[1] at 1-143 to 1-144 (3d ed. 1997)). In subsequent updates of Mr. Nimmer’s book, his position has changed to one consistent with his opinions in this litigation. E.g., R. Nimmer, The Law of Computer Technology § 1.115 p. 1-300 to 1-306 (3d ed., Jun. 2006 update), § 1.110 p. 1-268 to 1-269 (4th ed. 2009) (praising DSC opinion). The court has no explanation for Mr. Nimmer’s change in viewpoint, other than Autodesk’s presumably lighthearted speculation at oral argument that Mr. Nimmer 'got smart.' ”
[page 18-19] emphasis added
It certainly sounds like the court is saying Nimmer provides his services to tp whomever will pay his fee. The oldest profession?

Vernor Cross-Motion For Summary Judgment, filed March 6, 2009.

Autodesk Reply, filed March 20, 2009.

Vernor Response, filed May 29, 2009.

Court Decision, filed September 30, 2009. An appeal to the 9th Circuit Court of Appeals has been filed by Autodesk.

General
Articles | Cease and Desist Letters | Federal Court Cases | FAQs & Whines | Glossary | Hall Of Shame | Contributions

Corporate Lawyers
Cartoons | Code Of Ethics | Courtroom Remarks | Definition Of A Lie | Jokes | Lawyers | Lying | Who Have Lied

eBay - Land The Game

Definitions

Trademark Definitions
Blurring   |   Confusion   |   Damages   |   Dilution   |   History   |   Initial Interest Confusion   |   Likelihood Of Confusion   |   Material Difference Standard
Parallel Imports   |   Post-sale Confusion   |   Puffery   |   Secondary Meaning   |   Subsequent Confusion   |   Trademark Abuse
Unauthorized Use   |   Unfair Competition   |   What is a Trademark?
Copyright Definitions
Angel Policies   |   Contributory Infringement   |   Copyrightability   |   Copyright Extortion   |   Copyright Misuse Doctrine   |   Derivative   |   The Digital Millennium Copyright Act
EULA   |   Fair Use   |   First Sale Doctrine   |   Product Description   |   Registration   |   Registration Denied   |   What is a Copyright?   |   What is not Copyrightable?
Other Issues
Embroidery Designs   |   FAQs & Whines   |   Image and Text Theft   |   Licensed Fabric   |   Licensing & Licenses   |   Patterns   |   Patterns Index   |   Profit   |   Quilting
Selvage   |   Stanford School of Law Case Outline   |   Tabberone Disclaimer   |   Trademark Extortion   |   Urban Myths   |   What To Do If You Are Veroed

Federal Court Cases
Alphabetically | by Federal Circuit | by Subject | by Court Quotations

Federal Statutes
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22

Federal Lawsuits
Filing A Federal Lawsuit
Setting Up | Standing. | Joinder of Parties. | The Complaint | Their Answer | Default Judgment
F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Your Reply | Summary Judgment Motion | Affidavits | Time Extension

Defending Against A Federal Lawsuit
The Complaint | Your Answer | Denials | F.R.C.P. 12(b) Motion | F.R.C.P. 12(f) Motion | Affidavits | Time Extension

VeRO (Verified Right's Owner Program)
VeRO Commandments | VeRO-Verified Rights Owners Program | Counter Notice Letter
Counter Notice (pre-2003) | Counter Notice present | On-Line Survey from 2004 | Articles about VeRO | What To Do If You Are Veroed

Original material by Karen Dudnikov & Michael Meadors is © 1999-2014

iweb counter