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Re: GPL: Does a conveyor's violation result in rights to users?
From: |
Alexander Terekhov |
Subject: |
Re: GPL: Does a conveyor's violation result in rights to users? |
Date: |
Tue, 27 Mar 2007 13:56:58 +0200 |
Richard Tobin wrote:
>
> In article <4608EFBB.788AF1E4@web.de>,
> Alexander Terekhov <terekhov@web.de> wrote:
>
> >Yada, yada, yada. As if "first sale" ("copyright exhaustion" in EU
> >speak) were nonexistent not only in the GNU Republic but everywhere.
>
> That would only allow you to transfer your copy, not make more copies.
The doctrine 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) [distribution],
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.
http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf
"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."
More quotes from dmca/sec-104-report-vol-<2|3>.pdf:
Red Hat, Inc.:
Let me just clarify that I don't think anyone today intends to
impact our licensing practices. I haven't seen anything in the
comments, nor have I heard anything today that makes me think
someone does have that intention. What we're concerned about
are unintended consequences of any amendments to Section 109.
The primary difference between digital and nondigital products
with respect to Section 109 is that the former are frequently
licensed. ... product is also available for free downloaded
from the Internet without the printed documentation, without
the box, and without the installation service. Many open source
and free software products also embody the concept of copyleft.
... We are asking that amendments not be recommended that would
jeopardize the ability of open source and free software
licensor to require [blah blah]
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.
Library Associations:
First, as conceded by Time Warner, digital transmissions can
result in the fixation of a tangible copy. By intentionally
engaging in digital transmissions with the awareness that a
tangible copy is made on the recipient's computer, copyright
owners are indeed transferring ownership of a copy of the work
to lawful recipients. Second, the position advanced by Time
Warner and the Copyright Industry Organizations is premised
on a formalistic reading of a particular codification of the
first sale doctrine. 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." Twentieth Century Music Corp. v. Aiken, 422 U.S.
151, 156-158 (1975). The basic purpose of the first sale
doctrine is to facilitate the continued flow of property
throughout society.
regards,
alexander.
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