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Re: The worst that can happen to GPLed code

From: Stefaan A Eeckels
Subject: Re: The worst that can happen to GPLed code
Date: Fri, 18 Jun 2004 10:01:23 +0200

On Fri, 18 Jun 2004 00:06:16 +0000 (UTC) (Lee Hollaar) wrote:

> In article <> Stefaan A
> Eeckels <> writes:
> >The section you quote seems to indicate that copies are
> >by definition material objects, which is patent nonsense :-)
> >when it comes to computer files.
> So let's see.  One one hand we have the definition of what a copy is
> in United States copyright law.  On the other hand, we have you
> thinking that the definition is "nonsense when it comes to computer
> files."

A computer file is like the letters on a piece of paper;
without the paper, there are no letters. The intellectual
property, as such, is intangible ("the intangible work".
That's how I interpreted the text I quoted from the "DMCA 
section 104 Report" from the US Copyright Office (Aug 2001),
ie. that the digital transmission of a file (the "intagible
work") and its subsequent recording on a blank medium (or 
blank part of a medium) beloning to the recipient, does _not_
create the rights associated with the lawfull acquistion
of a "copy" (medium containing the work).
Does this make sense?

Here's the quote again (DMCA section 104 report, page xix,
last paragraph):

| The underlying policy of the first sale doctrine as adopted
| by the courts was to give effect to the common law rule
| against restraints on the alienation of tangible property.
| The tangible nature of a copy is the defining element of 
| the first sale doctrine, and critical to its rationale.
| The digital transmission of a work does not implicate the
| alienability of a physical artifact. When a work is trans-
| mitted, the sender is exercising control over the intangible
| work through its reproduction rather than common law dominion
| over an item of tangible personal property. 
| Unlike the distribution of digital works on a tangible medium,
| such as a floppy disk, the transmission of works interferes
| with the copyright owner's control of the intangible work and
| the exclusive right of reproduction. The benefits to further
| expansion simply do not outweigh the likelihood of increased
| harm.


> Computer files reside on some tangible medium of expression.
> That is what the "copy" of the computer file is.  A single medium of
> expression can contain many copyrighted works.  Just like a book
> of poems or short stories.

As far as I understand it, the doctrine of first sale applies
to the book, not the individual intangible works (like short
stories) that it contains.  Thus, one cannot (as was suggested
in the post I replied to), use first sale to justify using
the intabgible works (as opposed to the book) in the way allowed
by first sale. In other words, first sale doesn't give one the
right to extract files from a downloaded tarball, and recombine
them with other (one's own or other similarly "acquired" files)
into an "aggregation" without asking the permission of the
copyright holder.  Am I right here?

The point being, if one could do this (and I can't see why
there would be a difference between extracting a complete
file, or a function from a file from the tarball), extract
the contents of any legally obtained software work and use
them in one's own programs. 

The claim by the OP was that by downloading a GPLed work
enough times to cover the number of "aggregations" he 
would be distributing, first sale would allow him to do
so _without_ accepting the GPL. This, in my opinion, is
pure sophistry and would not be upheld in a court of law.


"What is stated clearly conceives easily."  -- Inspired sales droid

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