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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: Fri, 5 Oct 2012 12:21:31 +0100
User-agent: MicroPlanet-Gravity/3.0.4

On Fri, 05 Oct 2012 11:05:35 +0200, Alexander Terekhov wrote...

> Exclusive distribution right is severely limited by 'first sale' /
> exhaustion meaning that exclusivity allows to forbid distribution of
> copies made unlawfully (pirated copies). Distribution of lawfully made
> copies by owners of copies are not covered by the exclusive distribution
> right of the copyright owners.

You consistently ignore the fundamental point that in European law what 
exhausts the distribution right is *not* whether the copy is lawful.  
It's whether the copyright holder consented to placing the specific copy 
concerned on the European market.  

In the case of pirate copies, he hasn't.  And in the case of the 
replacement copy permitted by the CJEU decision, he hasn't.

You even quoted Article 4(2), but then you ignore what it says about how 
the copy needs to have been first sold in the Community by or with the 
consent of the copyright holder. 

Then you consistently ignore the even more fundamental point that the 
reproduction right - the right of the copyright holder to control 
reproduction of copies - is *never* subject to the exhaustion doctrine.

Before you can distribute copies, you have to make them.  That is only 
permitted either:
   (a) in accordance with the conditions of the copyleft licence, or 
   (b) the CJEU decision permits making a replacement copy to enable the 
new owner to use it (and so no doubt also permits it to be compiled to 
machine code for that purpose, if necessary).  The previous copy must be 
made unusable, and there's no blanket permission to make and/or 
distribute multiple copies.

> Do you agree that in the context of copyleft and other public licenses
> it is simply impossible to make a copy in machine readable form
> unlawfully?

What I don't agree is that that's a relevant question.

Under the copyleft licence, certainly copies can be made.  But they are 
subject to the copyleft conditions.  The CJEU decision doesn't alter 
that.  The copyleft licence gives additional permissions in parallel to 
the decision, but subject to the copyleft conditions. 

> If not then give an example but forget about eventual subsequent
> distribution of that copy for a moment (that is another act shielded by
> the doctrine of exhaustion).

Making copies is not shielded by the doctrine of exhaustion.  See above, 
and re-read Article 4(2).  The doctrine of exhaustion applies only to 
the copyright holder's right to control distribution of existing copies.  
His right to control reproduction is not affected.  Before you can 
distribute a copy, you have to make it.

I think you may be misunderstanding the meaning of "distribution" in 
European copyright law.  To a software author, distribution might mean 
putting a copy on a website so people can make their own copies.  But 
that's not the legal meaning.  Legally, when people make copies, that's 
reproduction, not distribution.  Distribution is the act of transferring 
an existing copy, which has already been made previously, to a new 
owner.  The act of making a copy is distinct from the act of 
distributing it.  

Tim Jackson
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