Re: [upcoming] The European Court of Justice on 'Software' First Sale
Ineiev wrote: On 10/11/2012 12:00 PM, Alexander Terekhov wrote: Ineiev wrote: Could you be more specific? what requirements are not fulfilled Signed written form to begin with. Article 1286 (3) maintains that this is not a requirement for licensing computer programs. 1286 (3) is about shrink-wrapped EULAs and manifestation of assent by first use (installing / running the program). 1286 (3) does not cover real IP licenses (contracts conveying rights regarding intangible work and having nothing to do with physical items and packaging) because they are not shrink-wrapped beasts. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On 10/11/2012 02:58 PM, Alexander Terekhov wrote: Ineiev wrote: On 10/10/2012 10:01 AM, Alexander Terekhov wrote: If so be advised that the GPL doesn't fulfil Russian requirements for IP licenses in general... Why? Read the entire chapter 69 (Part 4***) of Russian Civil Code. Read especially carefully articles such as 1235 (License Contract)... Finally, study twice article 160. Could you be more specific? what requirements are not fulfilled and what does it imply? [... it is copying ...] For the upteenth time: the act of copying is perfectly fine and unrestricted under the GPL and other public licenses. What is so hard to understand here? It is hard to understand how article 1272 may be relevant when you download GCC. what you get is a copy you've made yourself, it wasn't sold or alienated by the copyright holder. I can't see how the `first sale' doctrine may apply to it. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Ineiev wrote: On 10/11/2012 02:58 PM, Alexander Terekhov wrote: Ineiev wrote: On 10/10/2012 10:01 AM, Alexander Terekhov wrote: If so be advised that the GPL doesn't fulfil Russian requirements for IP licenses in general... Why? Read the entire chapter 69 (Part 4***) of Russian Civil Code. Read especially carefully articles such as 1235 (License Contract)... Finally, study twice article 160. Could you be more specific? what requirements are not fulfilled Signed written form to begin with. and what does it imply? Can't be enforced against licensee. [... it is copying ...] For the upteenth time: the act of copying is perfectly fine and unrestricted under the GPL and other public licenses. What is so hard to understand here? It is hard to understand how article 1272 may be relevant when you download GCC. what you get is a copy you've made yourself, it wasn't sold or alienated by the copyright holder. I can't ??? See for example: http://www.internetlibrary.com/pdf/specht%20district%20court.pdf SmartDownload is available from Netscapes web site free of charge. Before downloading the software, the user need not view any license agreement terms or even any reference to a license agreement, and need not do anything to manifest assent to such a license agreement ther than actually taking possession of the product. From the users vantage point, SmartDownload could be analogized to a free neighborhood newspaper, readily obtained from a sidewalk box or supermarket counter without any exchange with a seller or vender. It is there for the taking. See also: http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf 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. And: http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf 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 recipients 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 purchasers 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 proposedbut rejectedcontract terms.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Alexander Terekhov terek...@web.de writes: [...] For the upteenth time: the act of copying is perfectly fine and unrestricted under the GPL and other public licenses. ... As long as the other party (i. e., the recipient) accepts the license in full, and remains in full compliance. AIUI, the copyright law (in most, if not all, jurisdictions) explicitly prohibits making of copies without consent of the copyright holder (first sale doctrine, and for the purpose of backup, put aside.) Virtually the only way for the one making a copy of software under GNU GPL to gain such a consent is to accept and comply to GNU GPL. What is so hard to understand here? [...] -- FSF associate member #7257 ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: [...] More accurately, when were those copies you've just made first placed on the European market with the consent of the copyright holder? They haven't been, you've only just made them. Why then do you believe that they benefit from any exhaustion of the distribution right? Providing access to copyrighted work with permission to make copies directly by recipients instead of 'trading' material objects with copyrighted work fixed on/in them doesn't change the status of copies lawfully made (no matter who made them) and owned by strangers with respect to copyright and further distribution under doctrine of exhaustion -- in both cases copies fall under exception to the exclusive distribution right. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Mon, 08 Oct 2012 11:19:04 +0200, Alexander Terekhov wrote... Providing access to copyrighted work with permission to make copies directly by recipients instead of 'trading' material objects with copyrighted work fixed on/in them doesn't change the status of copies lawfully made What it doesn't change is the fact that whether they are lawfully made is irrelevant. (no matter who made them) and owned by strangers with respect to copyright and further distribution under doctrine of exhaustion -- in both cases copies fall under exception to the exclusive distribution right. It follows that that's wrong too. I've given you the reasons for all this many times over. I'm not going to repeat them any further. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: On Mon, 08 Oct 2012 11:19:04 +0200, Alexander Terekhov wrote... Providing access to copyrighted work with permission to make copies directly by recipients instead of 'trading' material objects with copyrighted work fixed on/in them doesn't change the status of copies lawfully made What it doesn't change is the fact that whether they are lawfully made is irrelevant. It is certainly explicitly relevant with respect to at least U.S.A based copyleft licensors such as the FSF (in my example I was talking about FSF owned GCC) because the governing IP laws are the IP laws of the United States of America, such as: http://www.law.cornell.edu/uscode/text/17/109 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. ... The phrase lawfully made under this title essentially means that the copy is not infringing, either because it was made by the copyright owner / with the permission of the copyright owner or it falls within one of the exceptions to the copyright owner's reproduction rights. And if you seriously believe that EU version of 'first sale' is somehow very very different from US version then go to doctor. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Mon, 08 Oct 2012 12:38:39 +0200, Alexander Terekhov wrote... And if you seriously believe that EU version of 'first sale' is somehow very very different from US version then go to doctor. It now appears that not only have you not understood the differences between the EU exhaustion of rights doctrine, and the US 'first sale' doctrine, but neither have you fully understood the US doctrine. (Hint: Differences include the fact that one uses the term lawfully made while the other doesn't. Similarities include the fact that both relate only to the sale or transfer or other disposal of that copy. Not to the creation of new copies from it.) But I've had enough of this. We've been over this many times. You're not listening. Goodbye. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Mon, 08 Oct 2012 16:50:12 +0200, Alexander Terekhov wrote... Unrestricted permission to reproduce (make copies) was placed on the European market with the consent of the copyright holder which is the same as if copyright holder would made and placed on the European market all those copies himself with respect to first sale / exhaustion. Incorrect. Goodbye, Alexander. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: On Thu, 04 Oct 2012 20:36:36 +0200, Alexander Terekhov wrote... The distribution right comes by statute as addition to the granted reproduction right / right to prepare derivative works. I'm not sure if this is a source of confusion here, but please remember that the reproduction right and the distribution right are both exclusive statutory rights which belong to the copyright holder. They allow him to *prevent* reproduction and distribution respectively. 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. 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? 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). ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: [... sale ...] Do you seriously believe that gifted copies don't fall under 'first sale'? Do you seriously believe that copies made with permission e.g. 'you may make as many copies verbatim as you like and even create derivatives and make as many copies of those as you like as well... both in exchange for nothing' (gratis permission) don't fall under 'first sale'? ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: [...] 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... And what are the 'conditions' for MAKING copies under copyleft? Again: recall that subsequent act of eventual distribution under 'first sale' statutory exception is irrelevant as far as copyright is concerned. All copyleft requirements are for the act of distribution of copies made, not the act of making copies. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Fri, 05 Oct 2012 14:02:55 +0200, Alexander Terekhov wrote... Tim Jackson wrote: [... sale ...] Do you seriously believe that gifted copies don't fall under 'first sale'? Do you seriously believe that copies made with permission e.g. 'you may make as many copies verbatim as you like and even create derivatives and make as many copies of those as you like as well... both in exchange for nothing' (gratis permission) don't fall under 'first sale'? Sure, I don't believe that 'first sale' is the only aspect of the exhaustion doctrine. There is more to it than just sales. I told you that Article 4(2) is just the tip of 50 years of case law on the topic of exhaustion. But so what? You are not addressing the real issues. E.g. that the copyright holder's right to control the making of copies - his reproduction right - is not subject to the exhaustion doctrine anyway. That's true whether or not you call it 'first sale', and whether or not it is triggered by a gift. It just doesn't apply to the *making* of copies. So yes, certainly the copyright holder can say you can make as many copies as you like. But he can also make that subject to conditions - as a copyleft licence does. Since he does that under his right to control reproduction, and since that reproduction right is not subject to the exhaustion doctrine, the copyleft licence conditions continue to be effective. And the CJEU decision only permits a replacement copy to permit the software to be used. It doesn't permit any further copies to be made. It doesn't exhaust anything. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Fri, 05 Oct 2012 14:13:10 +0200, Alexander Terekhov wrote... Tim Jackson wrote: [...] 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... And what are the 'conditions' for MAKING copies under copyleft? Again: recall that subsequent act of eventual distribution under 'first sale' statutory exception is irrelevant as far as copyright is concerned. All copyleft requirements are for the act of distribution of copies made, not the act of making copies. You are again forgetting that the CJEU decision does not exhaust anything. It starts from the assumption that the right to distribute *one specific copy* is *already* exhausted, and provides a mechanism to do that by making a replacement copy, the previous copy being rendered unusable. But it doesn't permit any more widespread distribution of new copies. It doesn't produce any further exhaustion, except for that one specific copy which is already exhausted. Any such distribution of new copies is permitted only by the copyleft licence, under the copyleft conditions. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: [...] So yes, certainly the copyright holder can say you can make as many copies as you like. But he can also make that subject to conditions - as a copyleft licence does. Hey, I've downloaded GCC binary package and made several copies of it... what are the GPL 'conditions' that I should have fulfilled for the act of making copies? The answer is 'no conditions for the act of making copies' and you simply don't want to admit it. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: On Fri, 05 Oct 2012 14:13:10 +0200, Alexander Terekhov wrote... Tim Jackson wrote: [...] 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... And what are the 'conditions' for MAKING copies under copyleft? Again: recall that subsequent act of eventual distribution under 'first sale' statutory exception is irrelevant as far as copyright is concerned. All copyleft requirements are for the act of distribution of copies made, not the act of making copies. You are again forgetting that the CJEU decision does not exhaust anything. It starts from the assumption that the right to distribute *one specific copy* is *already* exhausted, and provides a mechanism to do that by making a replacement copy, the previous copy being rendered unusable. But it doesn't permit any more widespread distribution of new copies. It doesn't produce any further exhaustion, except for that one specific copy which is already exhausted. Any such distribution of new copies is permitted only by the copyleft licence, under the copyleft conditions. Hey, I've downloaded GCC binary package and made several copies of it... what are the GPL 'conditions' that I should have fulfilled for the act of making copies? The answer is 'no conditions for the act of making copies' and you simply don't want to admit it. As far as distribution is concerned all new copies that I've made are lawfully made (with the GPL permission to reproduce) and since I own the copies that I've made I'm going to distribute these new copies under 'first sale' exception to the exclusive distribution right utterly ignoring the GPL 'conditions' for distribution as if the GPL would not pretend to convey any distribution right at all. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Fri, 05 Oct 2012 14:51:54 +0200, Alexander Terekhov wrote... Tim Jackson wrote: [...] So yes, certainly the copyright holder can say you can make as many copies as you like. But he can also make that subject to conditions - as a copyleft licence does. Hey, I've downloaded GCC binary package and made several copies of it... what are the GPL 'conditions' that I should have fulfilled for the act of making copies? The answer is 'no conditions for the act of making copies' and you simply don't want to admit it. But you can only distribute those copies in accordance with the GPL conditions. Likewise, if the CJEU decision was about GPL'd software you could download and make copies under the GPL. But you wouldn't be allowed to distribute them except under the GPL conditions. Your permission to do these things comes entirely from the GPL, not from the decision. The CJEU decision just gives one person a right to make and use a replacement copy of the software, but not to make or distribute further copies. This is much less than he already had from the GPL anyway. As an independent third party, the decision gives you nothing. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Fri, 05 Oct 2012 15:07:56 +0200, Alexander Terekhov wrote... Tim Jackson wrote: On Fri, 05 Oct 2012 14:51:54 +0200, Alexander Terekhov wrote... Hey, I've downloaded GCC binary package and made several copies of it... what are the GPL 'conditions' that I should have fulfilled for the act of making copies? But you can only distribute those copies in accordance with the GPL conditions. Nope, distribution under 'first sale' exception is good enough for me. OK, those consider those copies that you've just made on your own computer, that you've not yet distributed. When were they first sold? They haven't been, you've only just made them. Why then do you believe that they benefit from a 'first sale' exception? More accurately, when were those copies you've just made first placed on the European market with the consent of the copyright holder? They haven't been, you've only just made them. Why then do you believe that they benefit from any exhaustion of the distribution right? -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: [...] Again, I've emphasised that copy. There's no exhaustion of the right to control the making and distribution of **further** copies. Don't blend separate statutory rights together - I mean reproduction (making) and distribution. Exclusive distribution right gives copyright owners a right to sue in tort not only makers of pirated copies but also distributors who don't make pirated copies themselves. In the context of copyleft and and other public licenses pirated copies simply don't exist and it is simply redundant/not needed to 'grant' the distribution right because all copies made by licensees/downloaders-without-contract-formation/etc. fall under doctrine of exhaustion and can be distributed under shield of statutory 'first sale' exception to the exclusive distribution right, not a right granted by license contract. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Alexander Terekhov terek...@web.de writes: Tim Jackson wrote: [...] In the context of copyleft and and other public licenses pirated copies simply don't exist Why not? A binary made of copylefted source would be an illegal one, unless accompanied by the exact version of the source used to build that copy. (And such copies are known to exist.) and it is simply redundant/not needed to 'grant' the distribution right because all copies made by licensees/downloaders-without-contract-formation/etc. fall under doctrine of exhaustion and can be distributed under shield of statutory 'first sale' exception to the exclusive distribution right, not a right granted by license contract. Let's imagine for a moment that under some jurisdiction^* making copies of software is never illegal. Does it affect copyleft? I believe it doesn't. And thus no law that merely extends the right of the users to make copies of the software they've lawfully acquired may cause harm to copyleft, because such extensions are indeed one of the intents of copyleft itself. On the contrary, it's the law that'd enforce stricter limits on the rights of the users to make such copies (than mandated by the respective license) would go against copyleft. ^* Consider, e. g.: --cut: http://www.theregister.co.uk/2006/11/03/spanish_judge_says_downloading_legal/ -- Judge Paz Aldecoa of No. 3 Penal Court ruled that under Spanish law a person who downloads music for personal use can not be punished or branded a criminal. He called it a practised behaviour where the aim is not to gain wealth but to obtain private copies. --cut: http://www.theregister.co.uk/2006/11/03/spanish_judge_says_downloading_legal/ -- --cut: http://torrentfreak.com/downloading-3322-movies-is-okay-in-spain-090529/ -- The judge acknowledged that the man indeed downloaded the files without consent of the copyright holders in 2003 and 2004, but ruled that he only did so for for private use or sharing with other Internet users. There was no financial gain, so no crime has been committed and the defendant walked free. --cut: http://torrentfreak.com/downloading-3322-movies-is-okay-in-spain-090529/ -- https://en.wikipedia.org/wiki/Legal_aspects_of_file_sharing#Spain -- FSF associate member #7257 ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Thu, 04 Oct 2012 10:00:53 +0200, Alexander Terekhov wrote... Tim Jackson wrote: [...] Again, I've emphasised that copy. There's no exhaustion of the right to control the making and distribution of **further** copies. Don't blend separate statutory rights together - I mean reproduction (making) and distribution. I'm not. Exclusive distribution right gives copyright owners a right to sue in tort not only makers of pirated copies but also distributors who don't make pirated copies themselves. Right. In the context of copyleft and and other public licenses pirated copies simply don't exist and it is simply redundant/not needed to 'grant' the distribution right because all copies made by licensees/downloaders-without-contract-formation/etc. fall under doctrine of exhaustion and can be distributed under shield of statutory 'first sale' exception to the exclusive distribution right, not a right granted by license contract. That's where you are going wrong. The distribution right covers each individual copy. After *that copy* has been put on the market **by or with the consent of the copyright holder**, however, the distribution right is exhausted *for that copy*. Thus, *that copy* can be transferred on. [1] This doesn't permit the making of any *further* copies that might be made in the future from that copy. Making such a *further* copy is controlled by the reproduction right. Distributing it is controlled by the distribution right (unless and until the distribution right has been exhausted for that further copy.) Note particularly that what triggers the exhaustion is the fact that the particular copy concerned has been placed on the European market *by or with the consent of the copyright holder*. There is no exhaustion if the copyright owner hasn't consented to the particular copy concerned. [1] Note also that the reproduction right is never exhausted. Exhaustion only applies to the distribution right. To make and distibute a copy, you need permission under both. Therefore, if people are to be allowed to make further copies, they first need a licence or permission under the reproduction right. A copyleft licence gives them that permission, subject to the copyleft conditions. Once a legitimate further copy has been made under the copyleft conditions, that further copy can itself now be placed on the European market with the consent of the copyright holder. Now the distribution right is exhausted in respect of that further copy. But only because the copyleft conditions have been complied with - the copyright owner hasn't consented otherwise. But if the copyleft conditions are not accepted, the copy doesn't have any consent from the copyright holder. So the distribution right is not exhausted. Furthermore, the reproduction right was also infringed by making the copy. Now apply the recent CJEU decision. This says that in the case of the transfer of a software licence, the new owner can make a replacement copy, so that he can use it. But apart from that single exception, the reproduction right is still intact. It is never exhausted; exhaustion doesn't apply to the reproduction right. So the CJEU decision doesn't permit making any further copies. Nor does the CJEU decision legitimise the distribution of any such further copies. The copyright owner hasn't consented to any such further copies being placed on the Europen market. So the distribution right is not exhausted. If the software is copylefted, there is only one way that further copies can be made legitimately: by complying with the copyleft conditions. And there is only one way in which the copyright owner gives consent to placing such copies on the European market: in accordance with the copyleft conditions. Without the copyleft conditions, there is no consent, and the distribution right is not exhausted. A court decision doesn't mean that the copyright holder has consented. _ [1] See Article 4(2) which you quoted. The first sale in the Community of a copy of a program **by the rightholder or with his consent** shall exhaust the distribution right within the Community of that copy -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Thu, 4 Oct 2012 11:19:33 +0100, Tim Jackson wrote... On Thu, 04 Oct 2012 10:00:53 +0200, Alexander Terekhov wrote... Tim Jackson wrote: [...] Again, I've emphasised that copy. There's no exhaustion of the right to control the making and distribution of **further** copies. Don't blend separate statutory rights together - I mean reproduction (making) and distribution. I'm not. To be clear: There's no exhaustion of the right to control making, because the exhaustion doctrine doesn't apply to the reproduction right. And there's no exhaustion of the right to control distribution, because without the copyleft conditions the copyright holder hasn't consented to the copy concerned being placed on the European market. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote:
[... the copy concerned being placed on the European market ...]
Exhaustion of the distribution right covers all lawfully made copies
owned by strangers regarding copyright in a work fixated in a copy. A
copy does not necessarily have to be transferred to the owner on a
physical medium or somehow specially placed on the European market.
Having the copy made with the authorization of the copyright owner (i.e.
with permission to reproduce / prepare derivative works conveyed by the
copyleft and other public licenses) is enough.
It is even possible that some unauthorized copies may fit the bill if
the circumstances suggest that they are lawfully made.
The distribution right comes by statute as addition to the granted
reproduction right / right to prepare derivative works.
License contract may attempt to restrict that distribution freedom
('only private use, no distribution', copyleft 'conditions' imposed for
distribution of 'further' copies made, etc.) but that has nothing to do
with statutory tort (copyright infringement) in the case of breach of
restrictions/requirements for distribution.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Thu, 04 Oct 2012 20:36:36 +0200, Alexander Terekhov wrote...
Tim Jackson wrote:
[... the copy concerned being placed on the European market ...]
Exhaustion of the distribution right covers all lawfully made copies
owned by strangers regarding copyright in a work fixated in a copy.
No, exhaustion only applies to copies which have been placed on the
European market by or with the consent of the copyright holder. [1]
There is one additional lawfully made copy to which the copyright owner
has not consented. That's the copy permitted by the recent CJEU
decision. And that's the copy which you believe brings down the whole
edifice of copyleft.
You believe - wrongly - that this one copy can be duplicated ad
infinitum, because in your view the right to distribute it has been
exhausted.
There are several reasons why that belief is wrong.
One is that the reproduction right still exists. The reproduction right
is never exhausted. Exhaustion only ever applies to the distribution
right.
Another reason why your belief is wrong is that even when the
distribution right is exhausted, that happens on a copy-by-copy basis.
Once a copy is placed on the European market with the consent of the
copyright holder, that specific copy can be transferred on. But that
exhaustion doesn't permit any further copies to be made or distributed
(except, now, the single replacement copy permitted by the CJEU
decision, with previous copies made unusable).
The reproduction right is what prevents duplication of further copies -
unless permission is granted. The CJEU decision only grants permission
for reproduction of one single replacement copy, with the previous
owner's copy being made unusable. The copyleft licence grants
permission for reproduction of multiple copies, but only under the
copyleft conditions.
The CJEU decision does not permit reproduction of multiple copies to
which the copyleft conditions do not apply.
A
copy does not necessarily have to be transferred to the owner on a
physical medium or somehow specially placed on the European market.
It doesn't have to be on a physical medium, but it does have to be
placed on the European market by or with the consent of the copyright
holder. That's the whole basis for the exhaustion doctrine.
Article 4(2) which you quoted agrees with that. [1]
Having the copy made with the authorization of the copyright owner
(i.e.
with permission to reproduce / prepare derivative works conveyed by the
copyleft and other public licenses) is enough.
The only copy authorised by the recent CJEU decision is just a single
replacement copy. And it's not authorised by the copyright holder, only
by the decision.
Crucially, for this replacement copy, the decision gives no
authorisation to reproduce any more copies. And no authorisation to
prepare derivative works.
The permission you are talking about comes from the copyleft licence,
which is of course still available, in parallel to the decision. But it
comes with the copyleft conditions attached.
It is even possible that some unauthorized copies may fit the bill if
the circumstances suggest that they are lawfully made.
No. For exhaustion, being lawful is not enough. It has to be placed on
the European market by or with with the consent of the copyright owner.
See [1]
The distribution right comes by statute as addition to the granted
reproduction right / right to prepare derivative works.
And unless it is exhausted, it is a right which enables the copyright
holder to *prevent* distribution.
License contract may attempt to restrict that distribution freedom
('only private use, no distribution', copyleft 'conditions' imposed
for
distribution of 'further' copies made, etc.)
It's not a distribution freedom provided by a licence contract. Unless
exhausted, it is a right to *prevent* distribution, provided by statute.
A licence can specify conditions under which the copyright holder is
prepared to give permission.
but that has nothing to do
with statutory tort (copyright infringement) in the case of breach of
restrictions/requirements for distribution.
The reproduction right is never exhausted. But the copyleft licence
permits copies to be made subject to the copyleft conditions.
Exhaustion of the distribution right applies only to specific copies
placed on the market with the consent of the copyright holder. He only
consents to those specific copies which have been made subject to the
copyleft conditions.
The CJEU decision only allows a replacement copy, with the previous copy
being made unusable.
There are a few other narrow exceptions to copyright protection, which
are not relevant here.
Any other copy infringes the copyright.
[1] More specifically, Article 4(2) says that what exhausts the
distribution right is the first sale in the Community by the rightholder
or with his consent. Sale is one form of placing the copy
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Thu, 04 Oct 2012 20:36:36 +0200, Alexander Terekhov wrote... The distribution right comes by statute as addition to the granted reproduction right / right to prepare derivative works. I'm not sure if this is a source of confusion here, but please remember that the reproduction right and the distribution right are both exclusive statutory rights which belong to the copyright holder. They allow him to *prevent* reproduction and distribution respectively. Since the copyright holder has the exclusive rights to prevent reproduction and distribution, it then follows that he can choose not to exercise those rights. He can allow other people to reproduce and/or distribute the work, subject to such conditions as he may decide. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Tim Jackson wrote: [...] How much bearing do you think 17 U.S.C. has on European law? 17 U.S.C. is currently known in European law as Article 5 Exceptions to the restricted acts of DIRECTIVE 2009/24/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF Article 5 Exceptions to the restricted acts 1. In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. 2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. ... ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Alexander Terekhov wrote: [... 17 U.S.C. 109 and 17 U.S.C. 117 ...] How much bearing do you think 17 U.S.C. has on European law? 17 U.S.C. is currently known in European law as Article 5 ^ | 117 ---+ Exceptions to the restricted acts of DIRECTIVE 2009/24/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF Article 5 Exceptions to the restricted acts 1. In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. 2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. ... 17 U.S.C. 109 is currently known in European law as Article 4(2): 2. The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Tue, 02 Oct 2012 10:19:12 +0200, Alexander Terekhov wrote... Alexander Terekhov wrote: [... 17 U.S.C. 109 and 17 U.S.C. 117 ...] How much bearing do you think 17 U.S.C. has on European law? 17 U.S.C. is currently known in European law as Article 5 ^ | 117 ---+ Exceptions to the restricted acts of DIRECTIVE 2009/24/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF Article 5 Exceptions to the restricted acts 1. In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. 2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. ... So a lawful acquirer of a copy of copylefted software can do the same things as if the software was non-free - such as error correction and and making a back-up. But ony to facilitate the use of that specifc copy. Nothing more. This doesn't permit the making and distribution of further copies. Big deal. 17 U.S.C. 109 is currently known in European law as Article 4(2): 2. The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of **that copy,** with the exception of the right to control further rental of the program or a copy thereof. Again, I've emphasised that copy. There's no exhaustion of the right to control the making and distribution of **further** copies. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Richard Tobin wrote: In article 5065832f.12351...@web.de, Alexander Terekhov terek...@web.de wrote: Thus copies made under copyleft (and other public licenses) fall under exhaustion doctrine preventing copyright owners (licensors) using tort theory (copyright infringement claims) regarding control of terms and conditions for further distribution. Right, and I hear that in the US income tax is unconstitutional. quote author=Hollaar In article 43db926d...@web.de tere...@web.de writes: Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits. [quoting Eben Moglen] That might be true IF she doesn't have any right to act at all except as the license permits. But as I have pointed out here and in my comments to the FSF regarding the new GPLv3, that is not the case. United States copyright law provides a number of exceptions to the exclusive rights of the copyright owner, including first sale as covered in 17 U.S.C. 109 and the right in 17 U.S.C. 117 of the owner of a copy of a computer to reproduce or adapt it if necessary to use it. The convenient redefinition of things in the GPL reminds me of a quote from Abraham Lincoln: How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg. /quote Note that Hollar 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... ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Mon, 01 Oct 2012 10:34:49 +0200, Alexander Terekhov wrote... You seem to not grok a rather simple concept: lawful ownership of a copy incorporating work verbatim or even a copy incorporating derivative work gives the owner of that copy all the rights to distribute **that copy** without restrictions (conditions in GNUspeak) as far as copyright law is concerned no matter who (lawfully) made that copy. I've emphasised the words that copy in your post above. Lawful ownership gives no right whatsoever to make or distribute *further* copies. There's only one way that someone can get such a right to further copies: from the copyleft licence, with all its conditions. Thus the copyleft licence is not rendered impotent. If they haven't accepted the copyleft licence, all the lawful owner can do is to use **that one copy** that they've lawfully acquired. Or to transfer on **that one copy**. Whereupon the new transferee is likewise only able to use or transfer that one copy (unless they accept the copyleft licence). To do more would infringe the copyright. The recent CJEU decision merely provides a mechanism to implement that when the copy is licensed. The previous owner must make his copy unusable, and the transferee can make a new copy in its place. The new owner could later perform a similar transfer. But no further copies can be made or distributed -- except under the conditions of the copyleft licence. Contrary to your OP, copyleft has not died. I think your problem is that you are seeing a new owner who potentially hasn't accepted the conditions of the copyleft licence. But that means that neither does he get the freedoms that also come with the copyleft licence. If he makes or distributes new copies, or makes a modified copy, he would infringe the copyright. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Ivan Shmakov wrote: Alexander Terekhov terek...@web.de writes: [Dropping news:comp.os.linux.advocacy, for nntp://aioe.org/ is unlikely to allow it.] Official death of copyleft in EU: http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html Well, thanks for an early warning, but frankly, I don't quite understand what it has to do with copyleft? Copies made under copyleft (and other public licenses) are not pirated (illegal). Copies made under copyleft (and other public licenses) are lawfully made and initially are owned by the licensees (legal persons making use of the reproduction right... downloading without a license contract aside for a moment). Thus copies made under copyleft (and other public licenses) fall under exhaustion doctrine preventing copyright owners (licensors) using tort theory (copyright infringement claims) regarding control of terms and conditions for further distribution. Got it now? ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
In article 5065832f.12351...@web.de, Alexander Terekhov terek...@web.de wrote: Thus copies made under copyleft (and other public licenses) fall under exhaustion doctrine preventing copyright owners (licensors) using tort theory (copyright infringement claims) regarding control of terms and conditions for further distribution. Right, and I hear that in the US income tax is unconstitutional. -- Richard ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
On Fri, 28 Sep 2012 12:59:59 +0200, Alexander Terekhov wrote... Thus copies made under copyleft (and other public licenses) fall under exhaustion doctrine preventing copyright owners (licensors) using tort theory (copyright infringement claims) regarding control of terms and conditions for further distribution. Got it now? Unfortunately, I think you've not got the European exhaustion doctrine. For traditional copies of non-electronic works, and for music CDs, DVDs of films, etc, once a copy has been place on the EU market with the copyright owner's consent, the owner's rights in **that particular copy** have been exhausted. He can't prevent onward transfer of **that particular copy** throughout the EU. So if you've bought a copy, you can transfer it to someone else, e.g. give it away or sell it secondhand. But the copyright owner's right to control the making and distribution of **further** copies is not exhausted. If you make a further copy without permission, that still infringes the copyright. The latest CJEU decision extends that for licensed software. If you have a licensed copy of non-free software, you can transfer or sell your licence secondhand. Importantly, the subsequent purchaser can make a copy so he can use it - the copyright owner can't prevent that. But you have to make your copy unusable after you've transferred the licence. And the copyright owner **can** prevent both you and the subsequent purchaser making and distributing **further** copies. Those would still infringe the copyright. And that's it. The new purchaser has the same rights you did, no more. This is the same as if you sold your copy of a music CD. Neither you nor the subsequent purchaser can make and distribute further copies of the CD. Now apply that to copylefted software. If you transfer it to someone else, and make your copy unusable, the new user can make the necessary copy so he can use it. But the CJEU decision doesn't give the new user any new rights to distribute further copies. So for both you and the new user, your only right to distribute further copies comes from the terms and conditions of the copyleft licence. I think you may be looking at the part of the decision which says that the copyright owner can't require the subsequent purchaser to sign the licence. But a copyleft licence doesn't require signature anyway. If you make copies, it's implied that you accept the terms. Put another way, the CJEU decision doesn't give anyone a right to make further copies, beyond the one needed by the subsequent purchaser to use the software. In the case of copylefted software, if a person to whom a copy has been transferred does make and/or distribute further copies, it must be implied he did so under the terms of the copyleft licence. He can't get the necessary right to do so any other way. -- 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
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Alexander Terekhov terek...@web.de writes: [Dropping news:comp.os.linux.advocacy, for nntp://aioe.org/ is unlikely to allow it.] Official death of copyleft in EU: http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html Well, thanks for an early warning, but frankly, I don't quite understand what it has to do with copyleft? While the growing acceptance of the information as a property idea is disturbing, this particular court decision may be a move in a direction that isn't exactly wrong. For decades, the powers behind this intellectual property misconception have reminded us that you steal when you copy, and you're pirating when we're to lose our profits (despite the fact that the piracy is outlawed not only because it leads to lost /profits/, but first and foremost because it leads to lost /lives/), and now they've got what they've wanted: the thing one can steal, the other can resell. Quite an obvious thing, should one think of it! And where they would go next? It's my understanding that one's free to examine his or her own property, to disassemble or improve it, -- it may be a hammer, or it may be a radio, or a TV (and indeed, we've got a glorious past to remember, that of radio amateurs constantly improving their very own equipment.) Now, would the same principle be applied to a program? I wonder if there'll soon be a law that gives everyone the freedom to study how a program works, and to change it to make it do what you wish (just like you can do to your property!), and do that for just /any/ program one lawfully acquires. With that, we'll still be 2.5 to 3 freedoms apart of the software freedom proper, but that could be a good start, anyway. [...] -- FSF associate member #7257 ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org https://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: [upcoming] The European Court of Justice on 'Software' First Sale
Official death of copyleft in EU: http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html ... The case related to a dispute between software companies Oracle and UsedSoft over whether UsedSoft could sell businesses and consumers used licences for Oracle software without Oracles permission (previously discussed here). Oracle therefore took UsedSoft to court in Germany, which was referred to the Court of Justice of the European Union (CJEU). ... Key Issue 1: is the sale of software a first sale? The CJEU held that 'sale' means an agreement by which a person, in return for payment, transfers to another person his rights of ownership in an item of tangible or intangible property belonging to him (para 42). Whether there is a first sale of software therefore depends on whether that right of ownership is transferred by the software developer to the purchaser. Oracle argued that there is no right of ownership transferred to its purchasers, and therefore no first sale of its software at all, because it makes its software available for free download and separately enters into licence agreements with a downloader in return for that downloader paying a fee. Oracle argued therefore that this was therefore a licence arrangement, not a sales arrangement. The CJEU disagreed. It held the downloading of a copy of a computer program and the conclusion of a user licence agreement for that copy form an indivisible whole. Downloading a copy of a computer program is pointless if the copy cannot be used by its possessor. Those two operations must therefore be examined as a whole for the purposes of their legal classification (para 44). The CJEU therefore decided that making software available for download while at the same time entering into a licence agreement with the downloader and receiving payment for it examined as a whole, involve the transfer of the right of ownership of the copy of the computer program in question (para 45). So, the CJEU held that since the sale of software involved a transfer of ownership in the software from the developer to the purchaser, that means it also constitutes a first sale under the InfoSoc Directive. That in turn means that the developer's right of distribution is exhausted by that first sale (para 48). Key Issue 2: so if the sale of software by the developer to a first purchaser constitutes a first sale that exhausts the right of distribution, can the developer still control second hand sales using its right of reproduction? The key to understanding this issue is to remember that there are separate rights of distribution and rights of reproduction in EU copyright law. By this stage in the case, the CJEU had decided that rights of distribution weren't a problem for second hand sales. Now it had to decide whether software developers retain an exclusive right to control reproduction under Article 5(1) of Directive 2009/24 (aka the 'Computer Programs Directive') (which, if they do, could still be used to prohibit second hand sales). Essentially, the CJEU decided that the right to control reproduction is lost against the second purchaser (the reasons why take some explaining, but essentially it is because a second purchaser is held to be a lawful acquirer of the software under Article 5(1) of the Computer Program Directive). Other issues discussed: Issue 3: can the wording of the EU legislation be read such that the first sale/exhaustion of rights principle only applies to tangible software? No, said the CJEU following some slightly complex discussion of the relevant legislation (paragraphs 55 58). Later, it said: from an economic point of view, the sale of a computer program on CD-ROM or DVD and the sale of a program by downloading from the internet are similar. The on-line transmission method is the functional equivalent of the supply of a material medium (para 69). And even more clear still: To limit the application of the principle of the exhaustion of the distribution right solely to copies of computer programs that are sold on a material medium would allow the copyright holder to control the resale of copies downloaded from the internet and to demand further remuneration on the occasion of each new sale, even though the first sale of the copy had already enabled the rightholder to obtain an appropriate remuneration. Such a restriction of the resale of copies of computer programs downloaded from the internet would go beyond what is necessary to safeguard the specific subject-matter of the intellectual property concerned (para 63). Issue 4: does it matter that the software has been patched/updated/changed between being bought by the first purchaser and then transferred to the second purchaser? Oracle argued that, because the software in question had been updated under a maintenance agreement since it was bought by the first purchaser, it could not be said that the second purchaser was purchasing the same software. Therefore, Oracle
