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Re: The worst that can happen to GPLed code

From: David Kastrup
Subject: Re: The worst that can happen to GPLed code
Date: 15 Jun 2004 01:20:53 +0200
User-agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.3.50

Alexander Terekhov <> writes:

> 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.

Sure, as long as I have proof of purchase for each of the physical
copies that I can't replicate myself without accepting the GPL.

> Now go read  Here's a quote:

Look, quote master, all your quoting does not change that this is a
court case about simple resale of a copy, not replication.

> <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.
> </quote>

See?  The ruling talks about resale of a particular copy, not about a
"right" to replicate and redistribute.

> [...]
> > If they don't agree to the GPL, 
> I agree to the GPL Section 1.

You can either agree to all or nothing.  You can't cherrypick.

> 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.

What about "owners of a particular copy" don't you understand?

> (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.
> </quote>

Fine, so we are talking about the sale of a copy here.  And you may
resell that copy under copyright law.  But copyright law itself does
not allow you to replicate your copy and sell the replications.  The
only thing that allows that is the GPL, and it places conditions on
when you are allowed to redistribute replications.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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