David Kastrup wrote:
<URL:http://www.groklaw.net/article.php?story=20091010152322226>
Most "licenses" try abolishing the meaning of first sale altogether, and I find that more of a nuisance for the customer than the effects of the purported loophole appears to be in practice.
Let's analyze first sale and its effect on open source internet "distribution". Definitions 17 USC sec.101 -- "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. Exclusive Rights 17 USC sec. 106(3) -- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; The obvious meaning of the above copyright sections is that the exclusive distribution right applies to "PHYSICAL COPIES" that comprises the material object in which the work is first fixed. Now, let's say Alexander goes to a server offering GPL'd software at some internet site and legally downloads a copy of gcc that is fixed in a plastic CD on Alexander's computer. Who owns the copy fixed on the physical medium that is the CD? Alexander owned the plastic CD before he downloaded the copy. Do the GPL code authors own the plastic CD after the copy is burned? Absolutely not! Alexander still own that CD! You bet. Does he have the right to dispose of that copy by sale? You bet: 17 USC sec. 109 -- (a) 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... (b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Here's the point. If you are an owner of a computer program copyright, and license someone else to make a copy of your work on a physical medium that is owned by the licensee then "Notwithstanding the provisions of section 106(3)" gives the licensee (the lawful owner) of that copy of a computer program the right to dispose of that copy as long is it a transfer of ownership but not by rental, lease, or lending. It's the PHYSICAL MEDIUM and not the MESSENGER that counts! Sincerely, Rjack _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
