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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: Thu, 17 Jun 2004 21:04:38 +0200

On Thu, 17 Jun 2004 14:12:30 +0000 (UTC) (Lee Hollaar) wrote:

> In article <> Stefaan A
> Eeckels <> writes:
> >Digital
> >copies aren't considered tangible property, and hence aren't
> >covered by the first sale doctrine.
> This, at least in the United States, is complete nonsense.
>    "Copies" are material objects, other than phonorecords, in which a
>    work is fixed by any method now known or later developed, and from
>    which the work can be perceived, reproduced, or otherwise
>    communicated, either directly or with the aid of a machine or device.
>    The term"copies" includes the material object, other than a
>    phonorecord, in which the work is first fixed.
> So, by some strained logic, you claim that a material object is not
> tangible because it's digital?

I'm claiming that a tarball (lawfully downloaded from an FSF
server, for example) isn't tangible property, but rather the 
medium on which it resides, is tangible. Thus, while the
first sale doctrine applies to the disk/tape/CD on which
the tarball resides so can be sold, stapled, folded or mutilated
to the owner's heart's content, this does not necessarily
apply to the tarball. This distinction was clearly made
in the paragraph I quoted (that extending the doctine
of first sale to digitally distributed copies, which are
intangible, would not be beneficial).
The section you quote seems to indicate that copies are
by definition material objects, which is patent nonsense :-)
when it comes to computer files. In the case of a single
file on a single medium, one could amalgamate content and
container, but certainly not by definition. Other than
then, a computer file is most definitely intangible and

I doubt whether first sale gives the owner of a lawfull
copy the right to extract the files from the tarball, 
select a specific file, and sell it (as he might do with
the last chapter of a book), if only because it involves
making several copies. I also doubt that he could download 500
copies, extract portions of the tarball, and combine them
into new works that suddenly are "aggregations", based on
first sale and his lawfully making 500 downloads. It reeks
of cheap sophistry.
> And also in the United States, once you are the "owner of a copy of a
> computer program" you get to make another copy or adaptation "as an
> essential step in the utilization of the computer program in conjunction
> with a machine."  17 USC 117(a).  That likely includes the untarring of
> the program if that is necessary to use it.

But not to extract (a copy of) one or more files for
the purpose of modification or aggregation, I suppose.

> And as the "owner of a particular copy or phonorecord lawfully made,"
> you get to dispose of its possession as you see fit, 17 USC 109(a),
> except by rental, 17 USC 109(b).
> This is why most proprietary software purports to be licensed.  But
> the GPL and similar licenses don't have similar terms.  Instead, they
> license only the further distribution of a modified work, 

and the distribution of additional copies,

> something that is not covered by either sections 109 or 117.

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

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