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Re: Psystar/Apple/First sale on Groklaw

From: John Hasler
Subject: Re: Psystar/Apple/First sale on Groklaw
Date: Wed, 14 Oct 2009 07:37:29 -0500
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1 (gnu/linux)

Alan Mackenzie writes:
> It means what is says: that the legitimate owner of a copy of software
> may sell it without having to ask the copyright holder for permission.

Note that "copy" here means a _tangible, physical object_.  No right to
create copies is implied.

> It doesn't say that the seller may violate the terms of the governing
> licence in the act of selling it.

Copyright licenses do not apply to people who merely purchase copies
(_tangible, physical objects_) from legitimate owners.  Therefor such
people do not acquire any of the exclusive rights of the copyright
owner.  This means that there is no way that they can legally place
additional copies into circulation without acquiring licenses.  Of
course, if the software is Free Software they can acquire licenses by
simply exercising the rights granted therein (and become bound by the
terms thereof).

To the extent that the "license" purports to forbid the licensee to sell
copies that he legitimately owns (or otherwise yield rights he would
have as owner of a copy) it is not a copyright license but a civil
contract enforceable under state law.  Since the purchaser of the copy
is not a party to said contract he is not bound by it.  The licensor's
recourse should the licensee under such a contract sell a copy (which he
legitimately owns) in violation of the contract is to sue him for breach
of contract.  He has no cause of action against the buyer (as long as
they buyer does not attempt to exercise any of the exclusive rights of
the copyright owner).

This is all irrelevant to Free Software licenses as they never require
anyone to yield any rights that they would have in the absence of the
John Hasler
Dancing Horse Hill
Elmwood, WI USA

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