[License-review] First Sale in Europe (upcoming preliminary ruling)

Alexander Terekhov alexander.terekhov at gmail.com
Fri Mar 9 09:06:38 UTC 2012

On Fri, Mar 9, 2012 at 9:35 AM, Carlo Piana <osi-review at piana.eu> wrote:
> On 09/03/2012 09:27, Alexander Terekhov wrote:
>> On Sat, Mar 3, 2012 at 2:15 AM, Alexander Terekhov
>> <alexander.terekhov at gmail.com>  wrote:
>>> This may be of interest to lawyers and non-lawyers on these
>>> (license-review at opensource.org, license-discuss at opensource.org,
>>> board at opensource.org) lists:
>>> The European Court of Justice, upcoming preliminary ruling on software
>>> first sale:
>>> https://emeapressoffice.oracle.com/Press-Releases/Bundesgerichtshof-legt-Frage-der-Zul%C3%A4ssigkeit-des-Handels-mit-gebrauchten-Softwarelizenzen-dem-Europ%C3%A4ischen-Gerichtshof-vor-1a3d.aspx
>>> http://www.usedsoft.com/images/pdf/presseinfo/usedSoft_PM_usedSoft_saniert_Final_120202.pdf
>>> http://www.ipo.gov.uk/pro-policy/policy-information/ecj/ecj-2011/ecj-2011-c12811.htm
>> http://www.golem.de/news/eugh-wilder-schlagabtausch-um-gebrauchte-softwarelizenzen-1203-90303.html
>> ----
>> EuGH
>> Wilder Schlagabtausch um gebrauchte Softwarelizenzen
>> Oracle und Usedsoft wollten eine Entscheidung darüber, ob gebrauchte
>> Downloadsoftware ohne Zustimmung des Herstellers weiterverbreitet
>> werden darf. Doch es kam anders.
> It's interesting, and there is even a quote from my good friend Karl, but
> isn't it a bit off-topic ...

I don't think that it is off-topic.


The Library of Congress, The United States Copyright Office
The Department of Commerce, National Telecommunications
and Information Administration
Washington, D.C.
Inquiry Regarding Sections 109 and 117 ) Docket No. 000522150-0150-01
Reply Comments of the Library Associations
These Reply Comments are submitted on behalf of the American Library
Association, Association of Research Libraries, American Association
of Law Libraries,
Medical Library Association and Special Libraries Association (the
“Libraries), in
response to comments submitted pursuant to the Copyright Office’s
Request for Public
Comment dated June 5, 2000.


First, as conceded by Time Warner, digital transmissions can result in
the fixation
of a tangible copy.1 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 throughout society. The common law doctrine pre-dates even the 1909
Copyright Act, and judicial analysis has consistently focused on the
scope of the property
interest that has been transferred, not the nature of the land or
chattel that is the object of
that property interest.2

1 Time Warner notes: “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. If the purchaser does not
make and retain a second copy, further transfer of that copy on such
medium would fall within the scope of
the first sale doctrine.” Time Warner Comments at 3.

2 See, e.g., Henry Bill Publishing Co. v. Smythe, 27 F. 914, 925 (S.D.
Ohio 1886) (“The owner of the
copyright may not be able to transfer the entire property in one of
his copies, and retain for himself an
incidental power to authorize a sale of that copy…and yet he may be
entirely able, so long as he retains the
ownership of a particular copy for himself, to find abundant
protection under the copyright statute for his
then incidental power of controlling its sale….A genuine copy…carries
with it the ordinary incidents of
alienation belonging alike to all property.”); Step-Saver Data
Systems, Inc. v. Wyse Technology and The
Software Link, Inc., 939 F. 2d 91 (3d Cir. 1991) (applying a
functional analysis to determine the scope of
the property interest transferred and invalidating a box-top software
license on grounds that it was properly
considered proposed—but rejected—contract terms.)



 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 109. "

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