encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

Arnoud Engelfriet arnoud at engelfriet.net
Mon Feb 11 14:56:34 UTC 2008

The argument seems to be as follows:

When a copyright holder authorizes a download, the licensee obtains
the statutory right (17 USC 109) to resell or otherwise dispose of
the downloaded copy on a carrier (harddisk, CD) in any way he sees
fit, regardless of the license attached to the copy.

I'm not convinced that's a proper way to read 17 USC 109, but even
if this argument is correct, the outcome is of limited value. You
can only resell the work on physical carriers, you can't make further
copies yourself (those aren't authorized) and you certainly cannot
modify the work before reselling it. 

So, yes, great, you can sell people a USB stick with a binary-only
Linux kernel on it. But that's it. W00t.


David A. Temeles, Jr. wrote:
> License-discuss may not be the appropriate forum for the discussion
> Alexander is raising, but this topic is of significant interest and import
> to the open source community and should be discussed vigorously by the
> members of the open source community.  I would think that the members of
> this list would have more intellectual curiosity in the enforceability of
> open source licenses than demonstrated over the past few days in the
> responses to Alexander's posts.  
> Dave Temeles
> Bean, Kinney & Korman, PC
> -----Original Message-----
> From: Michael Poole [mailto:mdpoole at troilus.org] 
> Sent: Monday, February 11, 2008 9:25 AM
> To: license-discuss at opensource.org
> Subject: Re: encforceability of Open Source Licences (Re: (OT) - NOT A Major
> Blow to Copyleft Theory)
> Tzeng, Nigel H. writes:
> >>From: zooko [mailto:zooko at zooko.com]
> >
> >>I have found Alexander Terekhov's posts very interesting (especially 
> >>recently, as he seems to have toned down the ad-hominem and focussed 
> >>his rhetoric), because of my abiding interest in Open Source.
> > I guess the question is how close to reality is his analysis.  Given that
> > I haven't a clue but the responses to his posts have been less than
> > illuminating.
> If Alexander Terekhov's analysis is close to any reality, it is a very
> special reality in which he may be the only resident.  I've resisted
> the urge to chip in on his various odd legal claims in this thread --
> he has shown before that he is willing to argue longer than I am, he
> tends to repeat points that were already raised and addressed (perhaps
> because he's too busy trolling to bother remembering the thread at
> hand), and I'm too busy to research topics like legal arcana that have
> nothing to do with my day job -- but in my previous dealings with him,
> his claims have been specious: they may appear to be well-backed, but
> they have deep, inherent flaws.
> His comments in this thread are remarkably similar to things he has
> said before in other places.  One less-than-amusing tendency of his is
> to make posts that are almost related to the point at hand, but which
> usually leave gaps where readers are expected to supply key parts of
> his argument (such as how they apply to the case at hand).
> As one example of old tricks returning: When Rick Moen suggested that
> Terekhov test a theory on downloaded items, I was just waiting until
> Terekhov mentioned the Windows XP downloads again.  I'm not sure how
> "The rest 14 copies went to Debians" was meant to be parsed, but the
> message he linked to does not show that he sent any copies to Debian
> users or developers -- quite the opposite (which seems to be an
> instance of him leaving those critical gaps for us to fill in).
> Michael Poole

Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

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