Legal Question in Intellectual Property in Arizona

s a Franchise Attorney I can say this. It's really not possible to give advice without seeing the entire file in your case. This is a simple question that can be answered on a bulletin board like this. You obviously need an attorney and don't appear to have one - yet. Do yourself a big favor and consult with a good business or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

On its face, the facts you have laid out suggest that any ruling against you was in error, as a matter of law, assuming (a) you owned the copy of P90X and (b) it was a copy lawfully made under the U.S. Copyright Act.

It is not unusual for smaller publishers such as P90X to throw a tissy-fit when people sell or rent copies of their works, but the first sale doctrine has been around for over 150 years, and was codified into copyright law in 1909. There is, to put it simply, a big difference between being a copy owner and being a copyright owner.

I suggest that you find a copyright attorney ASAP. You say you have been fighting this for over a year, which suggests to me that perhaps the time to raise certain defenses has passed, But if you are the owner of the lawfully made copy of P90X that you offered for sale, Sections 109(a) and 202 of the Copyright Act entitle you to sell it without the consent of the copyright owner. Perhaps the copyright owner attempted to place restrictions on your statutory right, but at least one court has ruled that such a restriction would be void as against public policy and, in any event, your breach of such terms and conditions would entitle the plaintiff to damages for breach of contract (if any), and not copyright infringement. In short, find yourself a copyright lawyer right away. If the attorney is confident that you can ultimately win, the court has authority award you your cost and attorneys fees in defending the suit.

In my experience, many copyright owners have been attempting creative schemes to get around (nullify) the limitation in Section 109(a), and some courts fall for it. You need someone to represent you who is willing to rise to the occasion. The first sale doctrine is important not just for you, but for millions of Americans who cannot afford to buy new copies. The whole point of the Copyright Act is to encourage broad dissemination of such works, and Congress long ago said it would be "unwise for the copyright owner to exercise any control whatever over the article" once it places it in the stream of commerce.

Good luck!