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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: 18 Jun 2004 10:19:15 +0200
User-agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.3.50

Stefaan A Eeckels <> writes:

> 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?

With one restriction.  See below.

> 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?

It depends.  If you enter into a purchase agreement with a provider of
software that gives you the possibility for downloading, you are
creating a tangible copy as part of putting the contract into work.
First sale _will_ apply to that tangible copy you created as part of
the exchange, in the same manner as first sale applies to books
printed on demand, even if you yourself happen to own the print shop.

However, if you download software without previously contacting the
arbiter, there is no agreement in place that makes your creating the
copy part of a mutual deal.  The only thing giving you licence to
create a tangible copy then is the GPL.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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