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Re: Circumventing the GPL

From: Tim Smith
Subject: Re: Circumventing the GPL
Date: Wed, 23 Jul 2008 17:03:16 -0700
User-agent: MT-NewsWatcher/3.5.3b2 (PPC Mac OS X)

In article <>,
 Alexander Terekhov <> wrote:
> -----
> Exhaustion and the GPL

That reminds me of a question my professor asked us in copyright law 
class when I was in law school, when we were discussing the Betamax 
case.  I use my VCR to record a movie off of TV so I can watch it later.  
Fair use, according the the Supreme Court.

When I'm done watching, can I sell the recording?  The copy was lawfully 
made.  I own the copy.  Seems like first sale says I can.

What if I set up a bank of 1000 VCRs, to record 1000 copies?  Can I sell 
those?  That case is tricker, I think.  I'm not making the copies for my 
personal time shifting now, so maybe that will change the balance in the 
fair use analysis.  If that makes my copies unlawful, then first sale 
does not apply.

In the GPL hypothetical I've discussed before, and that Hyman is now 
discussing, there isn't necessarily any intention to "circumvent" the 
GPL.  The most likely way it would arise, in my opinion, is simply that 
company A ships with source because they want to satisfy GPL, and find 
that a more convenient way than making the source available for three 
years via a written offer.  Company B discards the source simply because 
they don't find it useful, and it is cheaper and more efficient to not 
have to bother dropping the CD in the box.  (Even if it takes no effort 
at all to include the CD, it is still going to generate support 
costs--its presence *will* confuse some customers).

Note: this hypothetical applies to pretty much all licenses, not just 

But suppose someone actively wanted to circumvent GPL, using first sale?  
What if they simply took this approach:

1. Acquire a lawful copy of a GPL binary.  Doesn't matter how--download 
it from somewhere, compile it from source, whatever.

2. Make copies of the binary.  GPL says this is OK.

3. Sell or give away those copies.  They are lawfully made copies, and 
the person owns those particular copies, so this seems to fall under 
first sale.

Note that this differs from my 1000 VCR hypothetical, because there the 
copying was not authorized.  But GPL authorizes the copying.  Oops.

Also note: this is not a problem for a free software license that is 
enforced as a contract.  With such a license, they have agreed to 
distribute source with copies they make, so there will be an action for 
breach of contract.  And if the contract is written right, that will 
terminate their permission to make copies, and stop them dead in their 

It's *only* the GPL that is susceptible to this blatant circumvention, 
due to its perverse insistence on not being a contract, but merely a 
bare copyright license only adding to what copyright already allows you 
to do.

(I believe I read somewhere...Larry Rosen's book, perhaps...that many 
jurisdictions do not recognize bare licenses, and GPL *would* be seen as 
a contract on those jurisdictions.  Maybe that provides a saving 
throw--if someone tries to blatantly circumvent by making copies and 
distributing under first sale, you sue them in a jurisdiction that would 
treat GPL as a contract).

--Tim Smith

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