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Re: "GPL requirement could have a chilling effect on derivative distros"

From: Stefaan A Eeckels
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Thu, 29 Jun 2006 18:24:06 +0200

On Thu, 29 Jun 2006 16:31:18 +0200
Alexander Terekhov <> wrote:

> Stefaan A Eeckels wrote:
> [... "first sale" ...]
> > In the absence of clear definitions, the interpretations of the
> > courts become crucial.
> "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
>  109."

But that doesn't clarify the status of a copy downloaded to a hard
disk and then copied to CD-R(W). One cannot directly write to a CD
type device, because the file has to be written to another file that
contains the filesystem. Is this intermediate copy lawful? 

It also doesn't answer the question about difference between the same
file downloaded twice from a server, or downloaded once and then copied
locally. There is no way that the resulting files themselves can be
distinguished, so why would one be lawful and the other not?

> More quotes from dmca/sec-104-report-vol-<2|3>.pdf:
> Time Warner, Inc.:
>   We note that the initial downloading of a copy, from an
>   authorized source to a purchaser's computer, can result in
>   lawful ownership of a copy stored in a tangible medium.

Notice "initial". This would imply that subsequent downloads do not
create additional lawful copies.

> Library Associations:
>   When technological change renders the
>   literal meaning of a statutory provision ambiguous, that
>   provision "must be construed in light of its basic purpose"
>   and "should not be so narrowly construed as to permit evasion
>   because of changing habits due to new inventions and
>   discoveries." 

Indeed. The basic purpose is to allow a copy of the software to be
treated as a book - you get the original media (possibly through the
initial download), and then can use the program on your system(s). You
can sell that single copy provided you do not keep the software
installed on your system(s). 

Downloading the same program 500 times with the purpose of distributing
these copies (and which results in exactly the same situation as if one
downloaded once and copied 499 times) would not result in 500 lawful
copies, and in order to proceed one would need to obtain the approval
of the copyright holder. If this were not the case, the purpose of the
law (allowing the copyright holders to control the copying of their
work) would not be fulfilled.

Take care,

Stefaan A Eeckels
Q: If ignorance is bliss, why aren't there more happy people in the
world? A: Because they don't know they're ignorant.

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