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Re: [upcoming] The European Court of Justice on 'Software' First Sale

From: Tim Jackson
Subject: Re: [upcoming] The European Court of Justice on 'Software' First Sale
Date: Tue, 2 Oct 2012 11:19:19 +0100
User-agent: MicroPlanet-Gravity/3.0.4

On Tue, 02 Oct 2012 10:01:41 +0200, Alexander Terekhov wrote...
> Tim Jackson wrote:
> [...]
> > There's only one way that someone can get such a right to further
> > copies: from the copyleft licence, with all its conditions.  Thus the
> > copyleft licence is not rendered impotent.
> At most it would be a license contract breach, not tort (copyright
> infringement) because the licensee who made 'further' copies made it
> within the scope of licensed *reproduction* right (no 'conditions' at
> all having nothing to do with copyleft 'conditions' for distribution of
> copies made) and owns the copies made... hence doctrine of exhaustion
> regarding distribution right shields licensee against copyright
> infringement claims.

That's wrong.  There is no such licensed reproduction right for the 
**further** copies we are talking about here.  You've not understood the 
CJEU decision.  It is limited to directly replacing the specific 
licensed copy covered by the licence that the 'seller' has transferred 
to the 'buyer'.  There is no right **under the CJEU decision** to make 
further copies, beyond that one replacement for the original one.  [1]  
And the seller's original copy has to be made unusable.  

Therefore the new owner can use that replacement copy.  But he can't 
make further copies.  He certainly can't distribute such further copies.

Unless someone has permission of some kind, making and distributing 
copies is a breach of that copyright - i.e. a tort.  For the further 
copies we are talking about here, there is no permission from the recent 
CJEU decision.  And there is no permission from the copyleft licence if 
its conditions have not been accepted.  Therefore there is an 
infringement of the copyright.

Perhaps you will say that in the case of copylefted software, the CJEU 
decision has the effect of transferring the right to make further 
copies, because the copyleft licence permitted that, but without also 
transferring the accompanying conditions.  

I don't believe the decision goes that far.  It's just about making sure 
that the new owner of the software is able to use it.  He can make a 
replacement copy to facilitate that.  But nothing more.  The decision is 
about being able to use the replacement software copy, rather than about 
being able to benefit from other provisions given by the licence. 

Thus, the copyright holder can't use his reproduction right to prevent 
the making of the replacement copy.  But the rest of his reproduction 
rights remain intact.  In the case of copyleft, those remaining rights 
still give control.  They mean that the person to whom the licence has 
been transferred cannot make and distribute further copies, except by 
accepting the copyleft conditions.


[1] Of course, if the original licence permitted two copies, or ten 
copies, then the 'buyer' could make two or ten replacement copies, as 
the case may be.  But the 'seller' has to make his original two or ten 
copies unusable - they are just replacements, not further new copies.

Tim Jackson
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