Adobe Systems Incorporated v. Kornrumpf
Filing
230
ORDER by Judge Claudia Wilken GRANTING PARTIAL SUMMARY JUDGMENT (ndr, COURT STAFF) (Filed on 6/15/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ADOBE SYSTEMS INCORPORATED,
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United States District Court
For the Northern District of California
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No. C 10-2769 CW
Plaintiff,
ORDER GRANTING
PARTIAL SUMMARY
JUDGMENT
v.
HOOPS ENTERPRISE LLC; and ANTHONY
KORNRUMPF,
Defendants.
________________________________/
AND ALL RELATED CLAIMS
________________________________/
On June 1, 2012, the Court converted Plaintiff Adobe Systems
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Incorporated’s first motion in limine, addressing the defense
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raised by Defendants Anthony Kornrumpf and Hoops Enterprise LLC
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that the prior settlement agreement between the parties granted
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Defendants permission to sell OEM software outside of the license
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terms, into a motion for partial summary judgment under Federal
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Rule of Civil Procedure 56.
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parties an opportunity to submit additional briefs and evidence
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addressing the motion for partial summary judgment.
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subsequently filed a supplemental opposition to Adobe’s motion.
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Having considered the papers filed by the parties, the Court
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GRANTS Adobe’s motion.
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At that time, the Court allowed the
Defendants
BACKGROUND
Adobe distributes its software products pursuant to different
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types of licenses.
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educational product (‘EDU’ product),” which “is priced
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One type of such software is “academic or
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considerably lower than retail for those who are students or
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otherwise affiliated with educational institutions.”
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in Supp. of First Mot. for Partial Summ. J. ¶ 2, Ex. A (Stickle
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Decl.) ¶ 6.
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is Original Equipment Manufacturer (OEM) products, which are
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distributed in a bundle with approved hardware components.
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¶ 7; see also Kornrumpf Decl. in Supp. of Defs.’ Mot. for
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Preliminary Inj. ¶ 2 (acknowledging that “OEM software is intended
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to be included with a hardware component”).
Coombs Decl.
Another type of restricted software licensed by Adobe
Id. at
The bundles are
United States District Court
For the Northern District of California
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product-specific and Adobe’s product may not be unbundled and sold
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separately or re-bundled with products not previously approved by
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Adobe.
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Stickle Decl. ¶ 7.
In an earlier related case, Adobe Systems LLC v. Kornrumpf,
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Case No. 08-5513 CW (N.D. Cal.), Adobe brought claims for
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copyright and trademark infringement against Defendant Anthony
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Kornrumpf alleging that he distributed unauthorized copies of
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Adobe’s software.
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agreement between the parties, and the Court entered a stipulated
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permanent injunction.
That action was resolved by way of a settlement
See Case No. 08-5513, Docket No. 27.
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The settlement agreement, which was executed on July 10,
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2009, stated that the parties entered into it to settle the action
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amicably and avoid the risk and expense of future litigation.
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Settlement Agreement, 1.1
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stipulated judgment holding Kornrumpf liable for one million
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dollars if, among other things, he breached his promise not to
It provided that Adobe could file a
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Because the settlement agreement was filed under seal, the
Court describes its content in general terms in this Order.
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infringe Adobe’s copyrights and trademarks as stated in the
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settlement agreement.
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advertise, offer for sale, sell or distribute any piratical,
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counterfeit or Academic or Educational products of Adobe.
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¶ 4.
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only, doing these actions with Adobe’s software that is not
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piratical, counterfeit, Academic or Educational would not
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constitute a breach of the injunction and would not be grounds for
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filing of the stipulated judgment.
Id. at ¶ 3.
In it, Kornrumpf agreed not to
Id. at
The agreement provided that, for purposes of the agreement
Id.
It also stated, “The
United States District Court
For the Northern District of California
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Agreement is without prejudice to any other valid rights of the
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Parties.”
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Id.
In the agreement, Adobe and the Software & Information
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Industry Association (SIIA) made certain warranties and
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representations, including that they were not aware of any other
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infringement by Kornrumpf involving counterfeit or Academic or
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Educational products and that they intended no further legal
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action or threats thereof against Kornrumpf for such infringement
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if he abided by the terms of the agreement.
Id. at ¶ 8.
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The agreement released all claims specifically or generally
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referred to in the agreement and complaint, including those that
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could have been brought in the complaint, but excluding any act
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taking place after the agreement’s effective date.
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The agreement also contained an integration clause, stating that
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it was the entire agreement and understanding between the parties
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and superseded and replaced all prior negotiations and proposed
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agreements, written or oral.
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representations and warranties made in the agreement, no party
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relied on any statement, representation or promise of any other
Id. at ¶ 9.
It also stated that, except for the
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party in entering into the agreement.
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agreement also provided that it was not transferable or
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assignable, except to the extent that Adobe’s and SIIA’s rights
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and responsibilities could be transferred to their successors in
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the event of a merger or acquisition.
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Id. at ¶ 18.
this Court, similarly provided,
b) Defendant specifically agrees that he will not now,
nor at any time in the future, advertise, offer to sell,
sell or distribute any Academic or Educational versions
of Plaintiff’s software.
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United States District Court
For the Northern District of California
Finally, the
The stipulated permanent injunction, which was entered by
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c) This Injunction is without prejudice to any other
valid rights of the Plaintiff or Defendant.
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Id. at ¶ 16.
Case No. 08-5513, Docket No. 27, ¶ 4.
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During the settlement negotiations between the parties
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preceding their execution of the agreement, Kornrumpf’s attorney
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in the earlier action, Michael Miretsky, an attorney at McCurdy &
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Leibl, LLP, the same firm which currently represents Defendants,
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communicated to Adobe’s counsel that Kornrumpf would only agree to
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a settlement if he were allowed to continue selling OEM versions
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of Adobe software products.
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testifies that early versions of the settlement agreement and
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injunction “included a blanket injunction against Mr. Kornrumpf
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selling any ‘unauthorized products’ which were merely defined as
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any version of Adobe’s products not authorized to be sold,” but
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that this was replaced with a list in the final version.
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¶ 7.
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Miretsky Suppl. Decl. ¶ 5.
Miretsky
Id. at
On June 12, 2009, during the negotiations between the
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parties’ attorneys prior to the execution of the settlement
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agreement, Miretsky sent Adobe’s counsel, Annie Wang, an email
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expressing his client’s concern about triggering the stipulated
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judgment, and stating in part
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All our client wants to do is to be able to sell
authentic software on his auction site. We are not
looking for a license to do that. We are not even
looking for a concession that we are permitted to do
that under the first sale doctrine. All we want to do
is make sure that doing so is not going to violate the
injunction and trigger the stipulated judgment. I would
propose the following amendment to paragraph 4c:
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“Nothing herein shall prevent Defendant from otherwise
advertising, selling, offering for sale or distributing
Plaintiff’s software. For purposes of this Agreement
only, advertising, selling, offering for sale or
distributing Plaintiff’s software on any auction site,
shall not constitute a breach of this injunction and
shall not be grounds for filing of the Stipulated
Judgment. For purposes of this Agreement only
advertising, selling, offering for sale or distributing
OEM versions of Plaintiff’s software shall not
constitute a breach of this injunction and shall not be
grounds for filing of the Stipulated Judgment so long as
Defendant distributes the software together with
hardware or peripheral equipment authorized by any valid
license or distribution agreement.”
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United States District Court
For the Northern District of California
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Wang Decl. ¶ 3, Ex. B.
incorporated in the injunction or settlement agreement.
On June 17, 2009, Wang emailed an Early Neutral Evaluation
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This particular language was not
statement to the parties’ neutral evaluator and copied Miretsky on
the email.
Wang Suppl. Decl. ¶ 8, Ex. D.2
The document stated in
part,
Adobe also received inquiries from Defendant’s customers
regarding the legitimacy of Defendant’s eBay sales of
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Defendants object to the admissibility of the statement,
arguing that it is hearsay and irrelevant, because the ENE never
took place and the email was sent only two days before the
execution of the settlement agreement. The Court overrules this
objection. First, the email shows that it was sent several weeks
before the agreement was signed. Regardless, it is relevant to
show what Adobe had communicated to Kornrumpf. It is not hearsay,
because it is not offered to prove the truth of the matters
stated.
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OEM software that appeared to have been sold with items
such as photo paper. While Plaintiff has not yet had an
opportunity to fully explore the OEM issues and the
origin of those products, it believes Defendant is not
operating under any valid distribution agreement or
license with Plaintiff or any of its authorized
distributors and these OEM sales are also unlawful and
in violation of the Copyright Act.
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Id.
After the settlement agreement was executed, Kornrumpf
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returned, to Adobe, software valued at approximately $21,000.
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Kornrumpf Suppl. Decl. in Opp. to Adobe’s Second Motion for
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Partial Summ. J. (Kornrumpf Suppl. Decl.) ¶ 3.
United States District Court
For the Northern District of California
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He retained Adobe
OEM software and began relisting it for sale on eBay.
Id.
Several months after the settlement agreement was executed,
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in October and November 2009, Adobe, through the SIIA, used eBay’s
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notice and takedown procedures to remove several of Kornrumpf’s
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listings of Adobe OEM software.
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Wang Suppl. Decl. ¶ 11.
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eBay, stating that he had the right to distribute this software.
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Kornrumpf Decl. ¶ 4.
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Digital Millennium Copyright Act, 17 U.S.C. § 512, eBay was
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required to reinstate Kornrumpf’s listings upon receipt of his
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counter-notices, unless Adobe filed suit.
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§ 512(g)(2)(C).
Kornrumpf Decl. ¶¶ 2-3; see also
Kornrumpf filed counter-notices with
Pursuant to the procedures set forth in the
See 17 U.S.C.
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Defendants’ counsel, Reagan Boyce, another attorney at
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McCurdy & Leibl, LLP, contacted Wang to ask why Adobe had filed
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takedown notices against Kornrumpf’s eBay account.
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2009, Boyce emailed Wang and stated that she was asking about an
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auction that was removed on October 29, 2009 for “commercially
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licensed versions” of a piece of software, “No academic or
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educational versions.”
Boyce Suppl. Decl., Ex. B.
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On November 5,
Wang responded
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on the same day, stating, “‘Commercially licensed versions’ is too
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vague for us to make a determination,” and asking for additional
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information “about the product (e.g., OEM, full retail, etc.)?”
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Id.
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OEM.
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Kornrumpf’s auction reinstated and/or informing eBay that it was
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removed in error.”
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responded, “I am following up with the client re your questions.”
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Id.
The next day, Boyce responded, in part, “The software was
Can you please let me know what is the status of getting Mr.
Id.
Less than a half hour later, Wang
In her declaration, Wang explains that she asked Boyce
United States District Court
For the Northern District of California
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“multiple times for details about what Kornrumpf was selling as
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the prior Settlement Agreement did not prevent Defendant Kornrumpf
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from distributing retail versions or even OEM versions if
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correctly distributed with the original hardware pursuant to
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Adobe’s licensing restrictions.”
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Wang Suppl. Decl. ¶ 12.3
On November 17, 2009, Boyce also sent a letter to eBay, with
a carbon copy to Wang.
The letter stated, in part,
Mr. Kornrumpf entered into an agreement with Adobe on
June 19, 2009, regarding the sale of Adobe software
products by Mr. Kornrumpf. Mr. Kornrumpf agreed that he
would not advertise, offer for sale, sell or distribute
any piratical, counterfeit, academic or educational
versions of Adobe software. Under the agreement, Mr.
Kornrumpf’s right to sell any other versions of Adobe
software, including commercially licensed OEM software,
was preserved.
On Thursday, October 29, 2009, at the request of SIIA
acting on behalf of Adobe, an auction posted by Mr.
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Defendants object to this paragraph of Wang’s declaration
as “improper argument” and under the best evidence rule, stating
that Wang failed to attach the email exchange that would show the
communications. However, Wang’s statement is not argument and
instead explains her reasons for her own actions. She does not
purport to describe the contents of the email exchange, which
Defendants had already offered into evidence. Accordingly, the
Court overrules Defendants’ objection.
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Kornrumpf was removed by eBay. This auction was one of
many auctions for the same title of software that SIIA
requested be removed. The product offered by Mr.
Kornrumpf was not educational, academic, counterfeit or
piratical in nature or origin and therefore should not
have been removed. . . .
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Boyce Decl. ¶ 5, Ex. B.
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not respond to this letter, or attempt “to ‘correct’ any
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misunderstanding.”
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Defendants state that Adobe’s counsel did
Boyce Decl. ¶¶ 5-6.
For months thereafter, Kornrumpf did not hear anything more
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about the removal of the listings and assumed that this confirmed
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his belief that the listing had been taken down in error.
United States District Court
For the Northern District of California
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Kornrumpf Decl. ¶ 5.
Adobe initiated the instant lawsuit on June 24, 2010.
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LEGAL STANDARD
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Summary judgment is properly granted when no genuine and
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disputed issues of material fact remain, and when, viewing the
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evidence most favorably to the non-moving party, the movant is
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clearly entitled to prevail as a matter of law.
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P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
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1987).
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Fed. R. Civ.
The moving party bears the burden of showing that there is no
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material factual dispute.
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true the opposing party’s evidence, if supported by affidavits or
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other evidentiary material.
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815 F.2d at 1289.
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in favor of the party against whom summary judgment is sought.
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
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F.2d 1551, 1558 (9th Cir. 1991).
Therefore, the court must regard as
Celotex, 477 U.S. at 324; Eisenberg,
The court must draw all reasonable inferences
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Material facts which would preclude entry of summary judgment
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are those which, under applicable substantive law, may affect the
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outcome of the case.
The substantive law will identify which
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facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986).
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Where the moving party does not bear the burden of proof on
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an issue at trial, the moving party may discharge its burden of
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production by either of two methods:
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United States District Court
For the Northern District of California
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The moving party may produce evidence negating an
essential element of the nonmoving party’s case, or,
after suitable discovery, the moving party may show that
the nonmoving party does not have enough evidence of an
essential element of its claim or defense to carry its
ultimate burden of persuasion at trial.
Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d
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1099, 1106 (9th Cir. 2000).
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If the moving party discharges its burden by showing an
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absence of evidence to support an essential element of a claim or
16
defense, it is not required to produce evidence showing the
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absence of a material fact on such issues, or to support its
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motion with evidence negating the non-moving party’s claim.
Id.;
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see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
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Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
If
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the moving party shows an absence of evidence to support the
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non-moving party’s case, the burden then shifts to the non-moving
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party to produce “specific evidence, through affidavits or
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admissible discovery material, to show that the dispute exists.”
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Bhan, 929 F.2d at 1409.
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If the moving party discharges its burden by negating an
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essential element of the non-moving party’s claim or defense, it
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must produce affirmative evidence of such negation.
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F.3d at 1105.
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burden then shifts to the non-moving party to produce specific
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evidence to show that a dispute of material fact exists.
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Nissan, 210
If the moving party produces such evidence, the
Id.
If the moving party does not meet its initial burden of
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production by either method, the non-moving party is under no
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obligation to offer any evidence in support of its opposition.
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Id.
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ultimate burden of persuasion at trial.
This is true even though the non-moving party bears the
United States District Court
For the Northern District of California
10
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Id. at 1107.
DISCUSSION
Adobe asks that the Court rule that, as a matter of law, the
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settlement agreement does not provide an express or implied “carve
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out” authorizing Defendants to sell OEM software outside of OEM
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licensing restrictions, as Defendants contend.
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that, in the agreement, it released claims that could have been
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brought in the first lawsuit, including past sales of unlicensed
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OEM software.
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before the execution of the settlement agreement.
Adobe acknowledges
Adobe thus does not seek damages for such sales
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Defendants oppose Adobe’s motion, arguing that, while the
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settlement agreement does not provide an express authorization, it
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“implicitly grants Defendants affirmative rights” to sell
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unbundled OEM software.
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specifically identifying four types of software to be enjoined” in
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the settlement agreement and proposed permanent injunction,
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“plaintiff crated [sic] the inference that any software not
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enjoined Defendant would be permitted to sell,” thereby giving
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Defendants “informal permission” to sell unbundled OEM software.
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Defs.’ Suppl. Brief at 2-3.
Opp. at 5.
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Defendants reason that, “by
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Adobe argues, and Defendants do not dispute, that Hoops
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Enterprise LLC cannot raise this defense, because it was not a
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party to the underlying agreement.
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there were an express or implied grant of rights in the agreement,
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this would not extend to Hoops Enterprise LLC, because it did not
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exist at the time of the agreement was executed, see Defs.’ Mots.
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in Limine 5, 8, and was not a party to the agreement.
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Settlement Agreement ¶ 18.
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As Adobe points out, even if
See
Further, this Court finds that there is no material dispute
United States District Court
For the Northern District of California
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of fact that the settlement agreement and permanent injunction in
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the prior case did not give Defendants authorization to distribute
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OEM software outside of the licensing terms.
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Under California law, if contract terms are disputed, even
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where the contract terms appear to the court to be unambiguous,
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“‘the trial court must provisionally receive any proffered
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extrinsic evidence which is relevant to show whether the contract
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is reasonably susceptible of a particular meaning.’”
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Mortg. Co. v. Fed. Realty Inv. Trust, 631 F.3d 1058, 1067 (9th
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Cir. 2011) (quoting Morey v. Vannucci, 64 Cal. App. 4th 904, 912
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(1998)).
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extrinsic evidence to establish an ambiguity in the parties'
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intent independent from the terms of the contract; instead, it can
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only be used to expose or resolve a latent ambiguity in the
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language of the agreement itself.”
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Inc., 578 F.3d 1201, 1210 (10th Cir. 2009).
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evidence reveals a latent ambiguity and that the contract is
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reasonably susceptible of the proffering party’s interpretation,
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that evidence must then be admitted to assist in the
First Nat’l
However, “California law does not permit the use of
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SCO Group, Inc. v. Novell,
If the extrinsic
1
interpretation of the contract.
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1067; see also Winet v. Price, 4 Cal. App. 4th 1159, 1165 (1992).
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If conflicting extrinsic evidence supports different
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interpretations of ambiguous contractual language, this poses a
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question of fact not amenable to summary judgment.
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Nat’l, 631 F.3d at 1067.
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See First Nat’l, 631 F.3d at
See First
On its face, the settlement agreement appears unambiguous.
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Kornrumpf agreed that he would not distribute any “piratical,
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counterfeit or Academic or Educational products” of Adobe.
If he
United States District Court
For the Northern District of California
10
did, Adobe could file a stipulated judgment holding him liable for
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one million dollars.
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software that was not piratical, counterfeit, Academic or
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Educational versions of Adobe’s software, that activity would not
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constitute a breach of the injunction and would not be grounds for
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Adobe to file the stipulated judgment.
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not affect “any other valid rights of the Parties,” neither party
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gained or relinquished any rights that were not specifically
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enumerated in the agreement.
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violated Adobe’s separate rights in products not covered by the
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agreement, such as by distributing OEM software outside of its
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licensing restrictions, Adobe did not relinquish its right to hold
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Kornrumpf liable through means other than filing the stipulated
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judgment, such as by initiating a new court action.
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Conversely, if Kornrumpf distributed
Because this agreement did
Thus, if Kornrumpf otherwise
Defendants’ proffered extrinsic evidence does not establish
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that the settlement agreement is ambiguous.
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is not reasonably susceptible to the interpretation that they
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urge.
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OEM software after the execution of the agreement and thus, by
Even if it were, it
Defendants argue that Adobe knew that Defendants would sell
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failing to include a specific prohibition of this conduct,
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implicitly allowed Defendants to do so.
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distinction between selling OEM software bundled with its original
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hardware, and selling OEM software without its original hardware.
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The settlement agreement did not affect Kornrumpf’s rights to
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distribute OEM software in compliance with its licensing terms,
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but neither did it grant him the right to do so outside of those
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terms.
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actions were a violation of Adobe’s rights because Defendants sold
Defendants ignore the
Adobe has consistently taken the position that Defendants’
United States District Court
For the Northern District of California
10
OEM software out of compliance with the licensing restrictions,
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which required that the OEM software be distributed with specific
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hardware components, and not simply because they distributed OEM
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software at all.
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proposed language, Defendants clearly understood and acknowledged
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this distinction.
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Further, as demonstrated by their attorney’s
Defendants offer as evidence a declaration from Miretsky that
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attests to his interpretation of the agreement as including an
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affirmative “carve-out” allowing Defendants to sell unbundled OEM
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software.
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In his declaration, he states,
The purpose of the carve out provision in the settlement
agreement and injunction was to permit Mr. Kornrumpf to
sell OEM versions of the Adobe software products. It
was the intent of the parties that continued sales of
OEM software would not violate Adobe’s intellectual
property rights. If there was no understanding and
agreement by Adobe that Mr. Kornrumpf would continue to
sell OEM versions, and only OEM versions, for the Adobe
software products, the carve out provision would have
been unnecessary.
Miretsky Decl. ¶ 8; see also Miretsky Suppl. Decl. ¶ 8.
However,
this declaration impermissibly consists of argument and
conclusions, and is not limited to facts within his knowledge.
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Miretsky purports to state “the intent of the parties” and “the
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purpose of the carve out provision” without offering any
3
foundation for his statement of Adobe’s beliefs and purposes.
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Accordingly, the Court sustains Adobe’s objections to this
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paragraph.
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Contrary to his contention, the references to “piratical,
7
counterfeit, Academic or Educational versions” are not rendered
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superfluous by Adobe’s interpretation of the agreement and
9
injunction.
Id.
Further, Miretsky’s arguments are not persuasive.
As explained above, these terms limit the activities
United States District Court
For the Northern District of California
10
that would trigger the filing, without a trial, of the stipulated
11
judgment and accompanying one million dollar liability for
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Kornrumpf, to only the enumerated types of software, so that Adobe
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could not use the stipulated judgment to get a judgment
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automatically against Kornrumpf for misuse of other software
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types.
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June 12, 2009 email.
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Miretsky himself recognized the importance of this in his
Defendants further argue that “evidence regarding the months
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of negotiation and the back and forth discussions between the
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parties as to what was acceptable, what was agreed upon and how
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best to achieve the goals of both parties, i.e., the true intent
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of the parties” supports their construction.
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evidence does not support their proposed construction.
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parties discussed OEM software during their negotiations, the
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parties chose in their final agreement not to make specific
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reference to OEM software.
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agreement was “without prejudice to any other valid rights of the
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Parties.”
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parties any rights that they did not already have, and Kornrumpf
However, this
While the
Instead, they stated that the
Settlement Agreement ¶ 4.
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Again, this did not give the
1
did not have a right to sell unlicensed OEM software either before
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or after executing the settlement agreement.
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language that Kornrumpf’s attorney himself proposed for inclusion
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in the agreement demonstrates that the parties understood that any
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permissible distribution of OEM software would have to be
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“together with hardware or peripheral equipment authorized by any
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valid license or distribution agreement.”
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Further, the
Wang Decl. ¶ 3, Ex. B.
Defendants next assert that the parties’ conduct supports
that their interpretation is reasonable.
“A party’s conduct
United States District Court
For the Northern District of California
10
occurring between execution of the contract and a dispute about
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the meaning of the contract’s terms may reveal what the parties
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understood and intended those terms to mean.
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evidence of such conduct, including concealment of certain
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information, is admissible to resolve ambiguities in the
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contract’s language.”
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Inc., 43 Cal. 4th 375, 393 (2008).
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that Adobe unreasonably delayed in bringing this suit or in
18
informing Defendants that the agreement did not give Kornrumpf
19
permission to sell unbundled OEM software.
20
permit an inference that Adobe’s conduct suggested that the
21
language in the contract was ambiguous, or reasonably susceptible
22
to Defendants’ proposed interpretation.
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non-judicial procedures, specifically submitting takedown notices
24
to eBay, to address Defendants’ actions.
25
neutral evaluation statement, Adobe explained to Kornrumpf the
26
distinction between distributing unbundled OEM software and
27
distributing it in compliance with a valid distribution agreement
28
or license.
For this reason,
City of Hope Nat’l Med. Ctr. v. Genentech,
Defendants appear to suggest
The evidence does not
Adobe utilized
Further, in the early
Kornrumpf, through his attorneys as demonstrated by
15
1
their emails, evidenced a clear understanding of this difference.
2
Adobe took the time to investigate whether Kornrumpf’s
3
distribution of OEM software was bundled properly in compliance
4
with the relevant distribution and licensing agreements.
5
Finally, Defendants contend that the differences between the
6
injunction entered in the prior case between the parties and
7
injunctions from other litigation involving Adobe demonstrate the
8
parties’ intent to grant Kornrumpf the right to sell unbundled OEM
9
software.
The only difference between the injunction entered by
United States District Court
For the Northern District of California
10
the Court here and the injunctions entered by other courts is the
11
inclusion of paragraphs 4(b) and (c).
12
Court used in these paragraphs does not state or imply that
13
Kornrumpf was granted the right to sell unbundled OEM software;
14
instead, the Court’s language expressly states, and means, that
15
the parties both retained any “valid rights” as to anything not
16
specifically enumerated.
17
Auto., Aero. & Agric. Implement Workers, Local No. 1093, 154 F.3d
18
1136, 1147 (10th Cir. 1998) (“The district judge’s interpretation
19
of his own order is, of course, the most authoritative.”).
20
Kornrumpf did not already have a valid right to sell unbundled OEM
21
software, this Court did not grant it to him through those
22
provisions.
23
statement in the Court’s injunction.
24
The language that this
See Lampkin v. Int’l Union, United
If
Defendants’ interpretation contradicts the clear
Thus, the Court finds that the extrinsic evidence proffered
25
does not disclose any latent ambiguity in the settlement
26
agreement.
27
evidence does not show that it is reasonably susceptible to
28
Defendants’ interpretation.
If the agreement were somehow ambiguous, the extrinsic
If it were susceptible to Defendants’
16
1
interpretation, and the extrinsic evidence was admitted to show
2
the intent of the parties, it does not raise a material dispute of
3
fact that the parties intended the settlement agreement in the
4
prior case to give Defendants authorization to distribute OEM
5
software outside of the licensing terms.
6
finds that its permanent injunction unambiguously did not do so.
Furthermore, the Court
7
CONCLUSION
8
For the reasons set forth above, the Court GRANTS Adobe’s
9
United States District Court
For the Northern District of California
10
11
first motion in limine, which was converted to a motion for
partial summary judgment (Docket Nos. 181 and 204).
IT IS SO ORDERED.
12
13
14
Dated: 6/15/2012
CLAUDIA WILKEN
United States District Judge
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