(OT) - NOT A Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Fri Feb 8 19:04:11 UTC 2008

On Feb 8, 2008 6:47 PM, Russ Nelson <nelson at crynwr.com> wrote:
> You misunderstand.  There is no license TO REDISTRIBUTE without

I suspect you mean DISTRIBUTE because REDISTRIBUTE is not listed in 17 USC 106.

> complying with the conditions.  A covenant exists only within the
> context of a license.  And, a covenant is a solemn promise.  Does a
> judge seriously expect that a covenant, bound with seal and oath,
> exists between an open source licensor and licensee, who have never
> communicated with each other and when the latter is unknown to the
> former?

He seriously "expects" that an open source license such as Artistic
License is an exchange of a promise for a promise (with a covenant not
to sue for infringement being licensor's promise). Aka Bilateral

> Yes, the license to use the copyrighted materials survives.  So what?

But you do not *need* a license to distribute copies lawfully made.

17 USC 109.

HOUSE REPORT NO. 94-1476 (about 109): "any resale of an illegally
''pirated'' phonorecord would be an infringement, but the disposition
of a phonorecord legally made under the compulsory licensing
provisions of section 115 would not."

The situation is exactly the same with respect to copies lawfully made
under (survived) "license to use the copyrighted materials" (to
reproduce and prepare derivative works).

It is really simple: if you are the owner of a particular lawfully
made copy, you are permitted to transfer it to another without
infringing the distribution right. (There are two exceptions to this,
having to do with renting sound recordings or computer programs.)

To quote Lee Hollaar (the author of http://digital-law-online.info/):

As for the reproduction right (1) implying the distribution right (3),
it's not an implication, but a special rule in United States copyright
law spelled out in Section 109.  (It is commonly called "first sale,"
but the actual parameters of the rule are specified in the statute
and not some lay reading of "first," "sale," or even "first sale.")

The heart of the provision is its first sentence:

     Notwithstanding the provisions of section 106(3), the owner of a
     particular copy or phonorecord lawfully made under this title, or
     any person authorized by such owner, is entitled, without the
     authority of the copyright owner, to sell or otherwise dispose
     of the possession of that copy or phonorecord.

But it goes on to state exceptions to this rule (primarily for the
rental of phonorecords and software) and exceptions to these exceptions,
not part of the original Copyright Act of 1976.

But if one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.

Note that the GPL does not acknowledge Section 109 when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works."  It also ignores Section 117
when, which gives "the owner of a copy of a computer program" the
right to "make or authorize the making of another copy OR ADAPTATION
of that computer program" if it is "an essential step in the
utilization of the computer program in conjunction with a machine".

As for Eben Moglen's assertion that "Licenses are not contracts" in
http://www.gnu.org/philosophy/enforcing-gpl.html (previously cited),
he offers little justification for the statement:

    the work's user is obliged to remain within the bounds of the
    license not because she voluntarily promised, but because she
    doesn't have any right to act at all except as the license permits.

In light of Sections 109 and 117 (and possibly other exceptions),
that statement is wrong with respect to United States copyright law.
Just look at the wording of Section 109 -- "is entitled, WITHOUT THE


"Notwithstanding Jacobsen's confused discussion of unilateral
contracts, bilateral contracts, implied licenses, "licenses to the
world" and "bare" licenses in his Appellant's Brief, the issue at hand
is fairly simple."

 -- Brief of Appellees (CAFC 2008-1001).

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