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

Alexander Terekhov alexander.terekhov at gmail.com
Mon Feb 11 18:27:35 UTC 2008

On Feb 11, 2008 3:56 PM, Arnoud Engelfriet <arnoud at engelfriet.net> wrote:
> 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.

All interesting stuff can be done upstream in the chain of
distribution of copies.

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

Quoting Tim Smith:

The case that is interesting is this:

    1. Party A makes a GPL'ed program available, on two CDs.  One has the
    program in binary form, and one has the source.

    2. Party B obtains these CDs, and having no interest in the source code,
    gives the source CD away, or perhaps discards it.

    3. Later, Party B no longer has a use for the program, so deletes all
    copies they have made of the binary CD, and then puts the binary CD up
    for sale.

    4. Party C buys the binary CD.

Question: who, if any, is obligated to provide source to Party C (if Party C
wants it)?

As far as I can work out, the answer is no one.  Party A is off the hook.
He distributed the source with the binary, satisfying all of his GPL

As for Party B, he is the owner of a copy of the program, legally obtained,
and is entitled under the First Sale Doctrine to sell that particular copy.

If B were selling a *modified* copy, or if B were making new copies and
selling them, it would be different, but that's not the case here.

This may seem a contrived example, but I think it is going to become common
as GPL'ed code is used in embedded devices.  E.g., suppose Party A is
selling a generic router, or generic PVR, or something like that, built
around a Linux kernel.  What he sells is a circuit board with a processor,
and the GPL'ed code in ROM.  He delivers these boards and code to his
clients, along with a CD with the source.  The clients put the boards in
boxes, add in their application-level code, to turn the boxes into complete
routers or PVRs or whatever, and sell the boxes to consumers.  Consumers are
Party C here.

The same thing arises when consumers resell the boxes.  You buy a router or
PVR off of someone on eBay, and the seller is not going to be obligated to
come up with source code for you to the GPL'ed code inside the box.

Mr. Rosen's copyleft license seems to anticipate such situations and
as a counter measure purports to establish viral assent to the
contractual restriction (seeking to eliminate the right under 17 USC
109) throughout the entire chain of distribution. So far so good...
but how on earth can he insist on OSL being a "unilateral" contract
(when it is in fact a contract to make a contract) is totally beyond
my comprehension. Perhaps he might want to elaborate... TIA.


"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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