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Re: Looking for an open source license..

From: Alexander Terekhov
Subject: Re: Looking for an open source license..
Date: Mon, 26 Jun 2006 16:09:34 +0200

David Kastrup wrote:
> Creating your own copies is not covered under first sale.

First sale covers "lawfully made" copies. To quote Hollaar,

As for the reproduction right (1) implying the distribution right (3),
it's not an implication, but a special rule in United States copyright
law spelled out in Section 109.  (It is commonly called "first sale,"
but the actual parameters of the rule are specified in the statute
and not some lay reading of "first," "sale," or even "first sale.")

The heart of the provision is its first sentence:
     Notwithstanding the provisions of section 106(3), the owner of a
     particular copy or phonorecord lawfully made under this title, or
     any person authorized by such owner, is entitled, without the
     authority of the copyright owner, to sell or otherwise dispose
     of the possession of that copy or phonorecord.

But it goes on to state exceptions to this rule (primarily for the
rental of phonorecords and software) and exceptions to these exceptions,
not part of the original Copyright Act of 1976.

But if one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.

The Copyright Office has noted an interesting potential quirk in the
way this provision is worded.  The test is whether the copy was
"lawfully MADE" indicating that we look only to the time of the
creation of a copy to determine whether this provision applies.  The
Supreme Court said in the Sony Betamax decision that copies of TV
programs made for purposes of time-shifting were lawfully made because
they were a fair use.  Can those copies then be sold under the rule
of Section 109?

Note that the GPL does not acknowledge Section 109 when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works."  It also ignores Section 117
when, which gives "the owner of a copy of a computer program" the
right to "make or authorize the making of another copy OR ADAPTATION
of that computer program" if it is "an essential step in the
utilization of the computer program in conjunction with a machine".

As for Eben Moglen's assertion that "Licenses are not contracts" in (previously cited),
he offers little justification for the statement:
    the work's user is obliged to remain within the bounds of the
    license not because she voluntarily promised, but because she
    doesn't have any right to act at all except as the license permits.

In light of Sections 109 and 117 (and possibly other exceptions),
that statement is wrong with respect to United States copyright law.
Just look at the wording of Section 109 -- "is entitled, WITHOUT THE

Finally, here's what had to say on the subject:

"There is no dispute that section 109 applies to works in digital
 form. Physical copies of works in a digital format, such as CDs or
 DVDs, are subject to section 109 in the same way as physical
 copies in analog form. Similarly, a lawfully made tangible copy
 of a digitally downloaded work, such as a work downloaded to a
 floppy disk, Zip™ disk, or CD-RW, is clearly subject to section



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