Huh? Re: (OT) - NOT A Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at
Fri Feb 8 19:57:33 UTC 2008

On Feb 8, 2008 8:22 PM, Ernest Prabhakar <ernest.prabhakar at> wrote:
> Hi Alexander,
> On Feb 8, 2008, at 11:04 AM, Alexander Terekhov wrote:
> >     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.
> Um, it sure sounds to me like that user has a right to transfer *his*
> copy to another person, but not to *make* copies and redistribute them.

Well, consider:

"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

Note that one can download many, very many copies of FOSS stuff
without assenting to any contract terms (see

More 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.
  [but electronic redistribution/move-and-delete of that copy to
  downstream recipient is not covered by Section 109]

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.

I'm with libraries
(, oughta be legal.



"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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