On Fri, 05 Oct 2012 11:05:35 +0200, Alexander Terekhov wrote... > Exclusive distribution right is severely limited by 'first sale' / > exhaustion meaning that exclusivity allows to forbid distribution of > copies made unlawfully (pirated copies). Distribution of lawfully made > copies by owners of copies are not covered by the exclusive distribution > right of the copyright owners.
You consistently ignore the fundamental point that in European law what exhausts the distribution right is *not* whether the copy is lawful. It's whether the copyright holder consented to placing the specific copy concerned on the European market. In the case of pirate copies, he hasn't. And in the case of the replacement copy permitted by the CJEU decision, he hasn't. You even quoted Article 4(2), but then you ignore what it says about how the copy needs to have been first sold in the Community by or with the consent of the copyright holder. Then you consistently ignore the even more fundamental point that the reproduction right - the right of the copyright holder to control reproduction of copies - is *never* subject to the exhaustion doctrine. Before you can distribute copies, you have to make them. That is only permitted either: (a) in accordance with the conditions of the copyleft licence, or (b) the CJEU decision permits making a replacement copy to enable the new owner to use it (and so no doubt also permits it to be compiled to machine code for that purpose, if necessary). The previous copy must be made unusable, and there's no blanket permission to make and/or distribute multiple copies. > Do you agree that in the context of copyleft and other public licenses > it is simply impossible to make a copy in machine readable form > unlawfully? What I don't agree is that that's a relevant question. Under the copyleft licence, certainly copies can be made. But they are subject to the copyleft conditions. The CJEU decision doesn't alter that. The copyleft licence gives additional permissions in parallel to the decision, but subject to the copyleft conditions. > If not then give an example but forget about eventual subsequent > distribution of that copy for a moment (that is another act shielded by > the doctrine of exhaustion). Making copies is not shielded by the doctrine of exhaustion. See above, and re-read Article 4(2). The doctrine of exhaustion applies only to the copyright holder's right to control distribution of existing copies. His right to control reproduction is not affected. Before you can distribute a copy, you have to make it. I think you may be misunderstanding the meaning of "distribution" in European copyright law. To a software author, distribution might mean putting a copy on a website so people can make their own copies. But that's not the legal meaning. Legally, when people make copies, that's reproduction, not distribution. Distribution is the act of transferring an existing copy, which has already been made previously, to a new owner. The act of making a copy is distinct from the act of distributing it. -- Tim Jackson news@timjackson.invalid (Change '.invalid' to '.plus.com' to reply direct) _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
