Re: Psystar/Apple/First sale on Groklaw

[Rjack]

David Kastrup wrote:
> <URL:http://www.groklaw.net/article.php?story=20091010152322226>

> Most "licenses" try abolishing the meaning of first sale 
> altogether, and I find that more of a nuisance for the customer 
> than the effects of the purported loophole appears to be in 
> practice.

Let's analyze first sale and its effect on open source internet
"distribution".

Definitions 17 USC sec.101 -- "Copies" are material objects, other
than phonorecords, in which a work is fixed by any method now known or
later developed, and from which the work can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a
machine or device. The term “copies” includes the material object,
other than a phonorecord, in which the work is first fixed.

Exclusive Rights 17 USC sec. 106(3) -- to distribute copies or
phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending;

The obvious meaning of the above copyright sections is that the
exclusive distribution right applies to "PHYSICAL COPIES" that
comprises the material object in which the work is first fixed.

Now, let's say Alexander goes to a server offering GPL'd software at
some internet site and legally downloads a copy of gcc that is fixed
in a plastic CD on Alexander's computer. Who owns the copy fixed on
the physical medium that is the CD? Alexander owned the plastic CD
before he downloaded the copy. Do the GPL code authors own the plastic
CD after the copy is burned? Absolutely not! Alexander still own that
CD! You bet. Does he have the right to dispose of that copy by sale?
You bet:

17 USC sec. 109 -- (a) Notwithstanding the provisions of section
106(3), 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...

(b)(1)(A) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording or the
owner of copyright in a computer program (including any tape, disk, or
other medium embodying such program), and in the case of a sound
recording in the musical works embodied therein, neither the owner of
a particular phonorecord nor any person in possession of a particular
copy of a computer program (including any tape, disk, or other medium
embodying such program), may, for the purposes of direct or indirect
commercial advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including any
tape, disk, or other medium embodying such program) by rental, lease,
or lending, or by any other act or practice in the nature of rental,
lease, or lending.

Here's the point. If you are an owner of a computer program copyright,
and license someone else to make a copy of your work on a physical
medium that is owned by the licensee then "Notwithstanding the
provisions of section 106(3)" gives the licensee (the lawful owner) of
that copy of a computer program the right to dispose of that copy as
long is it a transfer of ownership but not by rental, lease, or lending.

It's the PHYSICAL MEDIUM and not the MESSENGER that counts!


Sincerely,
Rjack