(OT) - NOT A Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Sat Feb 9 13:06:44 UTC 2008

On Feb 8, 2008 11:12 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Russ Nelson (nelson at crynwr.com):
> > Essentially you are saying that it's impossible to restrict the
> > distribution of downloadable copyrighted materials.
> [...]
> > That's a great legal theory.  Tell me when you get a judge to sign off
> > on it.
> I'd personally like to see Terenkov _test_ his theory, using, say, a
> downloaded copy of Adobe Acrobat Reader for which he sets up an
> unauthorised redistribution site.  We then bring this to the attention

While I totally agree with libraries
regarding interplay of Section 109 and electronic redistribution
(otherwise teleportation of tangible objects aka "copies" would also
be illegal and that is not good, see
http://www.research.ibm.com/quantuminfo/teleportation), in the
abundance of caution I refrain from electronic redistribution and
stick to redistribution of tangible objects "lawfully made" (without
accepting any license).

When I was last challenged with same request (to test my "theory") a
couple of years ago, I've ordered (for USD 0 because it was
pre-release beta stuff or something) a bunch of winxp64 downloads from
Microsoft's online shop (I was not required to accept MS' EULA in
order to obtain copies) and resold one of them on a CD for EURO 6.50
on ebay. Item 7133325141.


The rest 14 copies went to Debians.


And I'm still not in prison. How come?

Recall that


"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

> of Adobe Legal, which should give the man's hypothesis a suitably
> vigourous validation.
> I understand that Adobe Legal are extremely helpful in such matters.

Oh, it's really nice and quite helpful that you bring up Adobe. Thank
you very much.

<quote source=http://tinyurl.com/3c2n2>

In this case, Adobe alleges that by distributing unbundled
Collections, SoftMan has exceeded the scope of the EULA and has
infringed Adobe's copyrights, specifically Adobe's § 106 right to
distribute and control distribution. SoftMan contends that the
first sale doctrine allows for the resale of Adobe's Collection

(1) First Sale Doctrine

The "first sale" doctrine was first analyzed by the United States
Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).


One significant effect of § 109(a) is to limit the exclusive right
to distribute copies to their first voluntary disposition, and thus
negate copyright owner control over further or "downstream" transfer
to a third party. Quality King Distrib. v. L'Anza Research Int'l,
Inc., 523 U.S. 135, 142-44 (1998).


Adobe argues that the first sale doctrine does not apply because
Adobe does not sell or authorize any sale of its software. Adobe
characterizes each transaction throughout the entire stream of
commerce as a license.8 Adobe asserts that its license defines the
relationship between Adobe and any third-party such that a breach
of the license constitutes copyright infringement. This assertion
is not accurate because copyright law in fact provides certain
rights to owners of a particular copy. This grant of rights is
independent from any purported grant of rights from Adobe. The
Adobe license compels third-parties to relinquish rights that the
third-parties enjoy under copyright law.


(2) Sale v. License

(a) Historical Background

Historically, the purpose of "licensing" computer program copy use
was to employ contract terms to augment trade secret protection in
order to protect against unauthorized copying at a time when, first,
the existence of a copyright in computer programs was doubtful, and,
later, when the extent to which copyright provided protection was
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use
"licensing" continued after federal courts interpreted the
Copyright Act to provide substantial protection for computer
programs as literary works. (Id. at ¶ 7.) In Step-Saver Data
Systems, Inc. v. Wise Technology, the Third Circuit examined the
historical development of the use of licensing in the software
industry and concluded that subsequent changes to the Copyright Act
had rendered the need to characterize the transaction as a license
"largely anachronistic." 939 F.2d 91, 96 n.7 (3d Cir. 1991).10

(b) Adobe Sells its Software

A number of courts have held that the sale of software is the sale
of a good within the meaning of Uniform Commercial Code. Advent
Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-
Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp.,
929 F.2d 1147, 1150 (6th Cir. 1991).


Other courts have reached the same conclusion: software is sold
and not licensed.


In the instant case, the Court finds that there is only
assent on the part of the consumer, if at all, when the consumer
loads the Adobe program and begins the installation process. It is
undisputed that SoftMan has never attempted to load the software
that it sells. Consequently, the Court finds that SoftMan is not
subject to the Adobe EULA.



"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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