Is a plastic tarp a roof? It can be, according to the Oregon Supreme Court, which today remanded for trial a dispute between a homeowner and an insurer. In Dewsnup v. Farmers Insurance Co., the plaintiff undertook to repair the roof of his home. He removed the wood shakes and replaced them with plastic sheeting. On the first night of the repair project, a storm caused the sheeting to come loose, and rain entered the home through joints in the sublayer.
The homeowners' insurance policy excluded coverage for water damage, except that it would cover damage that resulted if the force of wind caused an opening in the roof. The insurer contended that since the plastic sheeting was not a roof, water damage that resulted when it blew off was not covered. Justice Kistler, after surveying the small body of law on temporary roofing, held that the covering of a house is a roof if it's "sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated." The homeowner offered the testimony of an expert witness regarding the adequacy and functionality of the plastic sheeting as a covering. As a consequence, the court concluded it's up to a jury to decide whether it served as a "roof" for purposes of the policy.
Justice Balmer, joined by Justice Linder, dissented, stating that no reasonable juror could conclude that the parties intended the term "roof" to include a tarp stapled to the house as a temporary covering. "It is plain that the plastic tarps were not intended to be permanent -- they were a temporary expedient, which the homeowner installed on his own after he removed the shakes as part of 'replacing the roof.'"
Last week the 9th Circuit held that, if a software manufacturer licenses rather than sells its software, and if a licensee sells the software outside the restrictions of the license, copyright law prevents the sale of the software by the subsenquent purchaser. The result in the case turns on the interpretation of the first-sale doctrine, and on the distinction between sale and license of a copyrighted work.
In Vernor v. Autodesk, Inc., the court found in favor of Autodesk, a manufacturer of computer-aided design software, and against an individual who sought to sell on eBay copies of Autodesk software that he purchased from one of Autodesk's direct customers. The Autodesk license agreement prohibits transfers by licensees. Vernor, the thwarted eBay seller, argued that he was protected by the first-sale doctrine, which provides that the seller of a copyrighted work may not place conditions on subsequent sales.
The Ninth Circuit held that the first-sale doctrine applies only when the copyright owner sells the copyrighted work, and not when it licenses the work. According to the court, the transferee of a copy of a copyrighted work is a licensee if the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions. In this case Autodesk's transfer to its direct customer was a license and not a sale, and the subsequent eBay sale was an infringement of Autodesk's rights.