Huh? Re: (OT) - NOT A Major Blow to Copyleft Theory
alexander.terekhov at gmail.com
Fri Feb 8 19:57:33 UTC 2008
On Feb 8, 2008 8:22 PM, Ernest Prabhakar <ernest.prabhakar at gmail.com> 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.
"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]
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
I'm with libraries
http://www.research.ibm.com/quantuminfo/teleportation 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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