Adobe Systems Inc. v. Anthony Kornrumpf

FILED
NOT FOR PUBLICATION JUN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADOBE SYSTEMS INC., No. 12-16616
Plaintiff - Appellee, D.C. No. 4:10-cv-02769-CW
v.
MEMORANDUM*
ANTHONY KORNRUMPF, AKA Tony
Kornrumpf; HOOPS ENTERPRISE, LLC,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted March 12, 2014
Berkeley, California
Before: THOMAS, FISHER and BERZON, Circuit Judges.
Defendants Anthony Kornrumpf and Hoop Enterprises, LLC appeal
judgment in favor of plaintiff Adobe Systems Inc. We have jurisdiction under 28
U.S.C. § 1291, we review de novo the district court’s grant of summary judgment
to Adobe on the defendants’ first sale doctrine defense, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err in its application of Vernor v. Autodesk, Inc.,
621 F.3d 1102, 1111 (9th Cir. 2010), to Dell’s and HP’s acquisition of copies of
Adobe software products. The original equipment manufacturer contracts
specified that Dell and HP were granted licenses, significantly restricted Dell’s and
HP’s ability to transfer the software and imposed notable use restrictions. A
transfer of software products under these circumstances constitutes a license rather
than a sale. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1159 (9th Cir. 2011);
MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 938-39 (9th Cir. 2010), as
amended; Vernor, 621 F.3d at 1111-12.
The defendants seek to distinguish these cases on grounds not presented to
the district court. Because the defendants raise these arguments for the first time
on appeal, we decline to reach them. See AlohaCare v. Hawaii, Dep’t of Human
Servs., 572 F.3d 740, 744 (9th Cir. 2009).
AFFIRMED.
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