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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 <>,
> Alexander Terekhov  <> 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. 

"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 

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. 


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