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

From: Ivan Shmakov
Subject: Re: [upcoming] The European Court of Justice on 'Software' First Sale
Date: Thu, 04 Oct 2012 16:09:43 +0700
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.2 (gnu/linux)

>>>>> Alexander Terekhov <> writes:
>>>>> Tim Jackson wrote:


 > In the context of copyleft and and other public licenses pirated
 > copies simply don't exist

        Why not?  A binary made of copylefted source would be an illegal
        one, unless accompanied by the exact version of the source used
        to build that copy.  (And such copies are known to exist.)

 > and it is simply redundant/not needed to 'grant' the distribution
 > right because all copies made by
 > licensees/downloaders-without-contract-formation/etc. fall under
 > doctrine of exhaustion and can be distributed under shield of
 > statutory 'first sale' exception to the exclusive distribution right,
 > not a right granted by license contract.

        Let's imagine for a moment that under some jurisdiction^* making
        copies of software is never illegal.  Does it affect copyleft?
        I believe it doesn't.  And thus no law that merely extends the
        right of the users to make copies of the software they've
        lawfully acquired may cause harm to copyleft, because such
        extensions are indeed one of the intents of copyleft itself.

        On the contrary, it's the law that'd enforce stricter limits on
        the rights of the users to make such copies (than mandated by
        the respective license) would go against copyleft.

^*  Consider, e. g.:

--cut: --
    Judge Paz Aldecoa of No. 3 Penal Court ruled that under Spanish law
    a person who downloads music for personal use can not be punished or
    branded a criminal.  He called it "a practised behaviour where the
    aim is not to gain wealth but to obtain private copies".
--cut: --

    The judge acknowledged that the man indeed downloaded the files
    "without consent of the copyright holders" in 2003 and 2004, but
    ruled that he only did so for for "private use or sharing with other
    Internet users."  There was no financial gain, so no crime has been
    committed and the defendant walked free.

FSF associate member #7257

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