Re: "GPL requirement could have a chilling effect on derivativedistros"

[David Kastrup]

Merijn de Weerd <merijn+nospam@realemail.net> writes:

> On 2006-06-30, Stefaan A Eeckels <hoendech@ecc.lu> wrote:
>> And as such it is not interesting to split a book into chapters for
>> separate resale. One could imagine doing so with a book that's a
>> compilation of articles, for example. I'm quite sure that the copyright
>> holders would not be interested in stopping this if they could. After
>> all, the book has been sold and consideration has been received.
>
> An interesting case happened some time ago here in the Netherlands.
> A calendar was published that contained for every month a nice
> reproduction of a painting, all by the same painter (Rien
> Poortvliet). Someone bought a lot of calendars, cut out the
> reproductions, framed them and sold that. The Dutch Supreme Court
> ruled that exhaustion (first sale) did not apply, since he was
> transforming the works into something new.

Well, so would he if he put them into the paper mill and created
toilet paper.  The difference is that his product still contains value
derived from the original _content_.

Now if this is done one piece at a time, as a private person putting
up a poster, this could hardly seem objectionable use: it certainly is
well within the fair use rights.  But even in this particular case, I
find the outcome far from self-evident, and different courts might
reach different conclusions in similar or even identical situations.
It would seem to me that a crucial part in this decision might have
been the _systematic_ process of "copyright exhaustion", of the kind
our honorable Terekhov is advocating.

Turning laws or rights to unintended purposes is, after all, not
always going to amuse judges.

This case is interesting, and indeed, could cutting away the source
code be considered to transform a GPLed work (which included source as
a part of its offering) into something new?  After all, in a GPLed
work, the source code can be considered an essential part of the
intended integrity (whether artistic or not) of the work.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum