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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 00:37:57 +0200
User-agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.3.50

Alexander Terekhov <> writes:

> That's not the law. Under first sale, I can redistribute copies 
> of GPL'ed works as part of my own compilations.

Nope.  I can't just redistribute copies of any books I buy as I feel
fit, for example.  I can sell the book itself, the original copy.
That is not redistribution.

> The GPL applies only to the GPL'ed works (and derivative literary
> works thereof).

Sure.  And the GPL allows redistribution of derived works outside of
the default copyright law only if you adhere to certain restrictions.

> <quote source=>
> 3. Copyright Infringement Conclusion
> In short, the transfer of copies of Adobe software making up the 
> distribution chain from Adobe to SoftMan are sales of the 
> particular copies, but not of Adobe's intellectual rights in the 
> computer program itself, which is protected by Adobe's copyright.
> SoftMan is an "owner" of the copy and is entitled to the use and 
> enjoyment of the software, with the rights that are consistent 
> with copyright law. The Court rejects Adobe's argument that the 
> EULA gives to purchasers only a license to use the software. The 
> Court finds that SoftMan has not assented to the EULA and 
> therefore cannot be bound by its terms. Therefore, the Court 
> finds that Adobe has not demonstrated a likelihood of success on 
> the merits of its copyright infringement claim.
> </quote>

But this case is not about replication and redistribution, it is
about resale.

> Note that owners of the GPL'ed software lawfully own infinite number
> of copies (pursuant to the GPL itself, which is a bare copyright
> license, not a EULA).

Not if they don't agree to the GPL because only the GPL gives them the
right to do copies.  If they don't agree to the GPL, they only own
those copies for which they can offer proof of purchase.

> Expansive FSF's claims are barred by the doctrine of copyright
> misuse and the doctrine of first sale.

Yes we know that's your favorite claim.  It just happens not to bear
weight with the courts and legal departments that actually have to
deal with the GPL.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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