SFLC will love the 7th Circuit

[Alexander Terekhov]

On 10/16/07, John Cowan <cowan at ccil.org> wrote:
> Philippe Verdy scripsit:
>
> > This won't apply to the Linux kernel, that Google did not originate itself,
> > so when it distributes it, it remains under the obligation of the Linux
> > licence. This is not a First Sale distribution, because Google has no
> > exclusive right on this kernel
>
> The first-sale doctrine refers to the sale of physical objects that
> embody the fixation of a copyrighted work, such as a book on paper or
> CD or a computer program in a device.  The owner of the object can sell
> it without the permission of the copyright owner.
>
> > this would require thousands of separate non-GPL licence agreements
> > with ALL those authors, accepting to relicence their code in a way that can
> > be sublicenced by Google).
>
> This turns out not to be the case either.

"+1"

Related:

< quotes from dmca/sec-104-report-vol-<2|3>.pdf >

Red Hat, Inc.:

 Let me just clarify that I don't think anyone today intends to
 impact our licensing practices. I haven't seen anything in the
 comments, nor have I heard anything today that makes me think
 someone does have that intention. What we're concerned about
 are unintended consequences of any amendments to Section 109.
 The primary difference between digital and nondigital products
 with respect to Section 109 is that the former are frequently
 licensed. ... product is also available for free downloaded
 from the Internet without the printed documentation, without
 the box, and without the installation service. Many open source
 and free software products also embody the concept of copyleft.
 ... We are asking that amendments not be recommended that would
 jeopardize the ability of open source and free software
 licensor to require [blah blah]

Time Warner, Inc.:

 We note that the initial downloading of a copy, from an
 authorized source to a purchaser's computer, can result in
 lawful ownership of a copy stored in a tangible medium.

Library Associations:

 First, as conceded by Time Warner, digital transmissions can
 result in the fixation of a tangible copy. By intentionally
 engaging in digital transmissions with the awareness that a
 tangible copy is made on the recipient's computer, copyright
 owners are indeed transferring ownership of a copy of the work
 to lawful recipients. Second, the position advanced by Time
 Warner and the Copyright Industry Organizations is premised
 on a formalistic reading of a particular codification of the
 first sale doctrine. When technological change renders the
 literal meaning of a statutory provision ambiguous, that
 provision "must be construed in light of its basic purpose"
 and "should not be so narrowly construed as to permit evasion
 because of changing habits due to new inventions and
 discoveries." Twentieth Century Music Corp. v. Aiken, 422 U.S.
 151, 156-158 (1975). The basic purpose of the first sale
 doctrine is to facilitate the continued flow of property
 throughout society.

http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf

"There is no dispute that section 109 applies to works in digital
 form. Physical copies of works in a digital format, such as CDs or
 DVDs, are subject to section 109 in the same way as physical
 copies in analog form. Similarly, a lawfully made tangible copy
 of a digitally downloaded work, such as a work downloaded to a
 floppy disk, Zip™ disk, or CD-RW, is clearly subject to section
 109."

http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf

regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I need look no further
than Groklaw itself. 'PJ' wants more journalists to use the site as a
resource, so I'll do just that. Below are excerpts from my story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of them, and my
response -- at times taken directly from Groklaw."

                                        -- http://tinyurl.com/2mn3jc