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Re: The worst that can happen to GPLed code

From: Alexander Terekhov
Subject: Re: The worst that can happen to GPLed code
Date: Tue, 15 Jun 2004 00:54:19 +0200

David Kastrup wrote:
> But this case is not about replication and redistribution, it is
> about resale.

For each copy of "infringing" collective work you sell/distribute, 
I (or any one else) can "sell" you a copy of a GPL'ed work you need 
that you can pass along without autorization of the copyright 
owner(s) under first sale doctrine. Now go read 
Here's a quote:


Adobe's reliance on Tasini is misplaced. The critical distinction 
is that Tasini does not address, as does the instant case, the 
fate of an individual copy of any work under the first sale 
doctrine. The Tasini Court reaffirmed that the owner of the 
copyright in the collective work is presumed to have acquired only 
the privilege of distributing the contribution as part of that 
particular collective work.17 In contrast, what Adobe alleges here 
is quite different. In this case, Adobe seeks to control the resale 
of a lawfully acquired copy of its software. Adobe's position in 
this action would be more akin to a journalist who claimed that 
ownership of the copyright to an article allowed him or her to 
control the resale of a particular copy of a newspaper that 
contained that article.


> If they don't agree to the GPL, 

I agree to the GPL Section 1.

<quote source=>

(1) First Sale Doctrine

The “first sale” doctrine was first analyzed by the United States 
Supreme Court in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). 


One significant effect of § 109(a) is to limit the exclusive right 
to distribute copies to their first voluntary disposition, and thus 
negate copyright owner control over further or “downstream” transfer 
to a third party. Quality King Distrib. v. L’Anza Research Int’l, 
Inc., 523 U.S. 135, 142-44 (1998). 


Adobe argues that the first sale doctrine does not apply because 
Adobe does not sell or authorize any sale of its software. Adobe 
characterizes each transaction throughout the entire stream of 
commerce as a license.8 Adobe asserts that its license defines the 
relationship between Adobe and any third-party such that a breach 
of the license constitutes copyright infringement. This assertion 
is not accurate because copyright law in fact provides certain 
rights to owners of a particular copy. This grant of rights is 
independent from any purported grant of rights from Adobe. The 
Adobe license compels third-parties to relinquish rights that the 
third-parties enjoy under copyright law.


(2) Sale v. License

(a) Historical Background

Historically, the purpose of “licensing” computer program copy use 
was to employ contract terms to augment trade secret protection in 
order to protect against unauthorized copying at a time when, first, 
the existence of a copyright in computer programs was doubtful, and, 
later, when the extent to which copyright provided protection was 
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use 
“licensing” continued after federal courts interpreted the 
Copyright Act to provide substantial protection for computer 
programs as literary works. (Id. at ¶ 7.) In Step-Saver Data 
Systems, Inc. v. Wise Technology, the Third Circuit examined the
historical development of the use of licensing in the software 
industry and concluded that subsequent changes to the Copyright Act 
had rendered the need to characterize the transaction as a license
“largely anachronistic.” 939 F.2d 91, 96 n.7 (3d Cir. 1991).10

(b) Adobe Sells its Software

A number of courts have held that the sale of software is the sale 
of a good within the meaning of Uniform Commercial Code. Advent 
Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-
Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 
929 F.2d 1147, 1150 (6th Cir. 1991). 


Other courts have reached the same conclusion: software is sold 
and not licensed. 


In particular, the following factors require a finding that 
distributing software under licenses transfers individual copy 
ownership: temporally unlimited possession, absence of time 
limits on copy possession, pricing and payment schemes that are 
unitary not serial, licenses under which subsequent transfer is 
neither prohibited nor conditioned on obtaining the licensor’s 
prior approval (only subject to a prohibition against rental and 
a requirement that any transfer be of the entity), and licenses 
under which the use restrictions principal purpose is to protect
intangible copyrightable subject matter, and not to preserve 
property interests in individual program copies. Id. at 172.



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