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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit

From: Alexander Terekhov
Subject: Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals
Date: Tue, 21 Dec 2010 17:55:26 +0100

Hyman Rosen wrote:
> 17 USC 27 is no longer the law; the Copyright Act of 1976 went into effect
> on January 1, 1978, after the above ruling, and the first sale doctrine now
> reads differently. Rather than allowing resale of works "lawfully obtained"
> 17 USC 109 allows resale of works "lawfully made under this title" and that
> is an entirely different kettle of fish, as Omega vs. Costco demonstrated.

See Staff of House Comm. on the Judiciary, 89th Cong., 1st Sess.,
Copyright Law Revision Part 5: 1964 Revision Bill with Discussion &
Comments 66 (Comm.Print 1965) (Barbara Ringer, member of the Copyright
Office's General Revision Steering Committee, stating: "The basic
purpose of [Section 109(a)] is to make clear that full ownership of a
lawfully-made copy authorizes its owner to dispose of it freely, and
that this privilege does not extend to copies obtained otherwise than by
sale or other lawful disposition. In other words, if you obtain a copy
by loan or by rental, you are not free to dispose of it freely or to use
it in any way you see fit."). The words "under this title" were added to
ensure that the Copyright Act itself would be the guide for determining
the validity of a sale. See H.R.Rep. No. 1476, at 79, reprinted in 1976
U.S.C.C.A.N. 5659, 5693 ("To come within the scope of section 109(a), a
copy or phonorecord must have been `lawfully made under this title,'
though not necessarily with the copyright owner's authorization. For
example, any resale of an illegally `pirated' phonorecord would be an
infringement, but the disposition of a phonorecord made under the
compulsory licensing provisions of section 115 would not."); S.Rep. No.
473, 94th Cong., 1st Sess. 72 (1975) (containing essentially the same
language); H.R.Rep. No. 83, 90th Cong., 1st Sess. 38 (1967) (same);
S.Rep. No. 982, 93d Cong., 2d Sess. 123 (1974) (same).

In sum, the legislative history of Section 109(a) reveals that the
phrase "lawfully made under this title" clarifies what constitutes a
"first sale" for purposes of the first sale doctrine"

The phrase essentially means that the copy is not infringing, either
because it was made with the permission of the copyright owner (i.e. 
under license) or it falls within one of the exceptions to the 
copyright owner's reproduction rights.

If one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.

17 USC 109 applies to anyone who is "the owner of a particular copy or
phonorecord lawfully made under this title".

You can become the lawful owner of a copy by license, operation of 
law (17 USC 115), gift or similar things that are not a sale of 
material object.

> A copy made for personal use but then distributed has not been lawfully made.

"In Wells the court granted defendant's motion for acquittal on eight
counts of criminal infringement of the copyright of aerial survey maps
owned by Edgar Tobin. Tobin had licensed 107 of his customers to
manufacture reproductions of his maps for their own use. Defendant was
charged with selling, without authorization, copies of Tobin's
copyrighted maps. The pivotal issue was whether the copies sold by the
defendant were copies which had been the subject of a first sale,
thereby terminating their statutory protection:

". . . If title has been retained by the copyright proprietor, the
copy remains under the protection of the copyright law, and
infringement proceedings may be had against all subsequent possessors
of the copy who interfere with the copyright proprietor's exclusive
right to vend the copyrighted work. If title has passed to a first
purchaser, though, the copy loses the protection of the copyright law
as discussed above." 176 F.Supp. at 633-634.

The court found that "there has been no showing on the record that the
copies of the aerial survey maps were not published by a lawful
licensee of the copyright proprietor or that title to these copies was
retained at all times by the copyright proprietor". 176 F.Supp. at
633. Since the Tobin license did not specify that title to the
reproduced maps was to remain in Tobin, title to the maps belonged to
the licensees who, under the first sale doctrine, were free to resell
the maps. The court concluded: "Lacking the protection of the
copyright law, there can be no infringement, and defendant should be
acquitted." 176 F.Supp. at 634."

Since the GPL does not specify that title to the copies made is to be
retained by the copyright proprietor, title to the copies belongs to
the licensees who, under the 17 USC 109, is free to distribute the
copies without the authority of the copyright owner.

See the light now silly Hyman?


(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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