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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 19:01:08 +0200

David Kastrup wrote:
> I think that the problem here is one of ownership.  How can you claim
> the ownership of a copy if there is no payment and the content has not

> been donated in any kind of way?  The law talks about copies "made
> under this title".  But I don't see how this title applies without any
> recompensation or consideration towards the copyright holder.

You're persistently being dense. 

To quote Hollaar...

In article <x5k6y5otfo....@lola.goethe.zz> David Kastrup <> writes:
> (Lee Hollaar) writes:
>> In article <x5wu25ouhr....@lola.goethe.zz> David Kastrup <> 
>> writes:
>> >First sale applies if there is a sale.  It doesn't if there isn't.
>> >Copyright defines the minimum set of rights that can be _sold_ to you.
>> >It does not apply to items to which you have no right in the first
>> >place, but to which you are unilaterally granted a conditional license
>> >to use and redistribute, without any exchange of consideration from
>> >your side.
>> Wrong, wrong, wrong, at least under United States copyright law.
>> "First sale" is just a shorthand for the judicially-created doctrine
>> that is now codified in 17 USC 109.  It does not require a "sale"
>> but applies to anyone who is "the owner of a particular copy or
>> phonorecord lawfully made under this title".
>What about "made under this title" don't you understand?

I seem to understand it a bit more than you do, it appears.

The phrase essentially means that the copy is not infringing, either
because it was made with the permission of the copyright owner or
it falls within one of the exceptions to the copyright owner's
reproduction rights.

>> I can become the lawful owner of a copy by gift or similar things
>> that are not a sale.
>Which then is not obtained "under this title".

More nonsense.  If the owner of the copyright gives me a copy, then
I am the owner of a copy "made" (not "obtained") "under this title."

In article <x5oenhotjw....@lola.goethe.zz> David Kastrup <> writes:
> (Lee Hollaar) writes:
>> I can become the lawful owner of a copyrighted work without any
>> exchange of consideration.  It's called a gift.
>But then copyright does not apply.  If I write a letter with a poem in
>it to you, you are not allowed to pass it on to somebody else without
>my permission.  If I _sell_ a letter with a poem in it to you, you

Wrong, again.

Copyright always applies in the United States for works that have been
fixed in a tangible medium of expression.  It has NOTHING to do with
sale.  A work is still protected by copyright, even if I find it in
the street.

If I am the lawful owner of a copy of a letter, perhaps because it
was sent to me, then I can tranfer my ownership to another without
the permission of the writer.  That's what 17 USC 109 says.

See also

What it is says is that even under contractual restrictions, 17 USC 
117 bars cause of action for copyright infringement when "the party 
exercises sufficient incidents of ownership over a copy of the 
program to be sensibly considered the owner of the copy for purposes
of ยง 117(a)." Same as with 17 USC 109. Now, that, of course, doesn't 
preclude cause of action for breach of contract (provided that the
contract formalities like assent were fulfilled, and that agreement 
contains clear wording regarding contractual forbearance from rights 
under 17 USC 109 and/or 17 USC 117 -- blatant misstatements of 
statutes like the GPL does it regarding the copyright act don't 
count)... but here comes totally idiotic GNUtians claim that the 
"GPL is not a contract"... heck, feel free to plead yourself out of 

Citing Bennett the court noted that "in some cases, it is possible 
for a plaintiff to plead himself out of court by alleging facts 
that render success on the merits impossible.

Guess why FSF's "enforcement" motto is "Don't go to court"?!



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