                                                                           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                           NOT FOR PUBLICATION                              JUN 02 2014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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