We have fond memories of Sanders Hot Fudge, Brown's Creamery, swimming in Cass Lake, Vernor's
Ginger Soda and watching the bottling process, the boat trip to Bob-Lo Island, the zoo, J.L.
(100) Rather than apply the rule that governed Augusto, however, the court looked to its prior inconsistent caselaw to distill a three-part test that asks: first, "whether the copyright owner specifies that a user is granted a license," second, "whether the copyright owner significantly restricts the user's ability to transfer the software," and third, "whether the copyright owner imposes notable use restrictions [on the intangible copyrighted work]." (101) Since Autodesk's terms contained the necessary language, the court concluded that Autodesk owned the discs in Vernor's
(133) In its decision, the court identified three factors to evaluate in determining whether ownership has occurred through a sale, or whether a user was merely a licensee: (1) whether the contract specified that the user was granted a "license"; (2) whether the contract significantly restricted the user's ability to transfer the software; and (3) whether the contract imposed "notable use restrictions." (134) In essence, the court favored form over function, expressly rejecting Vernor's
arguments that the economic realities and indefiniteness of the licenses had the characteristics of sale rather than a license.
eBay, claiming that Vernor's
sales infringed its copyright, and
licensing cases, applying a brand new standard to Vernor's
(80) Autodesk filed a number of DMCA takedown notices with eBay arising out of Vernor's
eBay listing for sales of Autodesk copies.
At first glance, Vernor's
license test works well for many software licensors.
Autodesk objected to Vernor's
online sales, asserting they constituted copyright infringement.
In 2009, the courts ruled in Vernor's
favor, reaffirming his rights under the first-sale doctrine.
Autodesk, citing the Digital Millennium Copyright Act, not only managed to delay Vernor's
sales attempts; it also got him barred from eBay for a month.
Central to much of Vernor's
work is the idea of the Singularity, which is going to happen Real Soon Now--a time when (to greatly simplify) computers begin to improve themselves recursively, and quickly become independent of human control, which presumably would have profound effects on human consciousness and, ultimately, what the idea of "human nature" will actually be.
Petz explained, "They want the Vernor's
floats, the sodas and things like that."