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Re: About first sale doctrine

From: Alexander Terekhov
Subject: Re: About first sale doctrine
Date: Thu, 24 Jul 2008 20:24:31 +0200

Hyman Rosen wrote:
> GPL. A court isn't going to let you make copies and use
> first sale to sell them any more than it would let you
> sell videotapes that you've recorded of over-the-air
> broadcasts.

You confuse online distribution of unlimited number of copies (free
software available for unrestricted downloading without any "I agree"
manifestation of assent by downloader) with watching or hearing
someone's performance (with the only excuse for transfer under 17 USC
109 being "fair use").

unlike the user of Netscape Navigator or other click-wrap or shrink-
wrap licensees, the individual obtaining SmartDownload is not made 
aware that he is entering into a contract. SmartDownload is available 
from Netscape's web site free of charge. Before downloading the
software, the user need not view any license agreement terms or even 
any reference to a license agreement, and need not do anything to 
manifest assent to such a license agreement other than actually 
taking possession of the product. From the user's vantage point, 
SmartDownload could be analogized to a free neighborhood newspaper, 
readily obtained from a sidewalk box or supermarket counter without 
any exchange with a seller or vender. It is there for the taking.

< 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.
  [but electronic redistribution/move-and-delete of that copy to
  downstream recipient is not covered by first sale]

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.

The entire Reply by Library Associations is available at:

Isaac got it:

Further, my understanding is that Alexander was proposing lawfully
acquiring and distributing copies and not making new copies.  If the law
requires that a backup or adapted copy be distributed with the
originals, Alexander would do that and then acquire, at no expense, a
new copy.  Rinse lather repeat.

You ask how a copy would be acquired without accepting the GPL.

I'm not aware of an expectation or requirement to accept the GPL before
downloading the software.  Free software is often made available for
downloading without any notice obtained before, during or after the
download that the copies obtained must be deleted if the GPL is not

Anyone can obtain GPLd software, and provided only that they include
source code, operate a free or paid distribution ftp site in which they
allow GPLd software to be downloaded without restriction.



(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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