encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)
alexander.terekhov at gmail.com
Tue Feb 12 14:41:36 UTC 2008
This I just can't resist.
On Feb 12, 2008 12:59 AM, Rick Moen <rick at linuxmafia.com> wrote:
> It's already been explained why Terenkov rather outrageously
> misrepresented this statutory embodiment of the First-Sale Doctrine as
> supposedly permitting arbitrary soft copies, as distinct from being what
> it _really_ is, the right to resell the one physical copy that you
> bought, and nothing else.
I'm in a pretty good company. "Soft-copies" aside for a moment, here's
what Lee Hollar who worked with the Chief Judge and the Chief
Intellectual Property Counsel to the Senate Judiciary Committee on
Internet, copyright, and patent issues as a Committee Fellow (see
http://digital-law-online.info/lpdi1.0/treatise2.html) had to say
about the line of reasoning akin to Rick Moeh's (from now on I'm going
to spell Moen as "Moeh" in return to his enduring persistence to call
me "Terenkov") regarding 17 USC 109 being limited to "right to resell
the one physical copy that you bought, and nothing else":
In article <cedhdt$2l9... at toad.stack.nl> galac... at stack.nl (Arnoud
"Galactus" Engelfriet) writes:
>I had always understood first sale to be restricted only to the
>copy you acquire (buy) from the copyright holder. Not to copies
>you make yourself.
And your understanding is wrong, at least if you are talking about
United States copyright law. The question under 17 USC 109 is
simply whether the copy was "lawfully made," not who made it or
what made it lawful.
In the Committee Report that accompanied the passage of the Copyright
Act of 1976 (House Report 94-1976), there is this explaination:
To come within the scope of section 109(a), a copy or
phonorecord must have been "lawfully made under this title,"
though not necessarily with the copyright owner's authorization.
For example, any resale of an illegally "pirated" phonorecord
would be an infringement, but the disposition of a phonorecord
legally made under the compulsory licensing provisions of section
115 would not.
In article <x5wu25ouhr.... at lola.goethe.zz> David Kastrup <d... at gnu.org> writes:
>First sale applies if there is a sale. It doesn't if there isn't.
>Copyright defines the minimum set of rights that can be _sold_ to you.
>It does not apply to items to which you have no right in the first
>place, but to which you are unilaterally granted a conditional license
>to use and redistribute, without any exchange of consideration from
Wrong, wrong, wrong, at least under United States copyright law.
"First sale" is just a shorthand for the judicially-created doctrine
that is now codified in 17 USC 109. It does not require a "sale"
but applies to anyone who is "the owner of a particular copy or
phonorecord lawfully made under this title".
I can become the lawful owner of a copy by gift or similar things
that are not a sale.
And if I am the lawful owner, I can dispose of it in any way I want,
except for rental in the case of phonorecords or most computer
In article <x5k6y5otfo.... at lola.goethe.zz> David Kastrup <d... at gnu.org> writes:
>holl... at faith.cs.utah.edu (Lee Hollaar) writes:
>> In article <x5wu25ouhr.... at lola.goethe.zz> David Kastrup
<d... at gnu.org> writes:
>> >First sale applies if there is a sale. It doesn't if there isn't.
>> >Copyright defines the minimum set of rights that can be _sold_ to you.
>> >It does not apply to items to which you have no right in the first
>> >place, but to which you are unilaterally granted a conditional license
>> >to use and redistribute, without any exchange of consideration from
>> >your side.
>> Wrong, wrong, wrong, at least under United States copyright law.
>> "First sale" is just a shorthand for the judicially-created doctrine
>> that is now codified in 17 USC 109. It does not require a "sale"
>> but applies to anyone who is "the owner of a particular copy or
>> phonorecord lawfully made under this title".
>What about "made under this title" don't you understand?
I seem to understand it a bit more than you do, it appears.
The phrase essentially means that the copy is not infringing, either
because it was made with the permission of the copyright owner or
it falls within one of the exceptions to the copyright owner's
>> I can become the lawful owner of a copy by gift or similar things
>> that are not a sale.
>Which then is not obtained "under this title".
More nonsense. If the owner of the copyright gives me a copy, then
I am the owner of a copy "made" (not "obtained") "under this title."
In article <nm9fyovbw4b.... at mass-toolpike.mit.edu> Bruce Lewis
<brle... at users.sourceforge.net> writes:
>Alexander Terekhov <terek... at web.de> writes:
>> And what's the point of "and distribute"? As an owner of a copy
>> lawfully made I'm free to distribute it.
>US copyright statute, chapter 1, section 106(1) and (3) defines copying
>and distrubution as separate exclusive rights.
>I don't know why these rights are listed separately either, but it seems
>prudent that if you want to grant both rights you should be explicit
>about it, rather than assuming right (1) implies right (3).
Because it was felt that both somebody who reproduces works but does
not distribute them to the public, and somebody who distributes works
to the public that were reproduced by another, should both be infringers?
As for the reproduction right (1) implying the distribution right (3),
it's not an implication, but a special rule in United States copyright
law spelled out in Section 109. (It is commonly called "first sale,"
but the actual parameters of the rule are specified in the statute
and not some lay reading of "first," "sale," or even "first sale.")
The heart of the provision is its first sentence:
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.
But it goes on to state exceptions to this rule (primarily for the
rental of phonorecords and software) and exceptions to these exceptions,
not part of the original Copyright Act of 1976.
But if one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.
"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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