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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 13:28:18 +0100
User-agent: MicroPlanet-Gravity/3.0.4

On Fri, 05 Oct 2012 14:02:55 +0200, Alexander Terekhov wrote...
> Tim Jackson wrote:
> [... sale ...]
> Do you seriously believe that gifted copies don't fall under 'first
> sale'?
> Do you seriously believe that copies made with permission e.g. 'you may
> make as many copies verbatim as you like and even create derivatives and
> make as many copies of those as you like as well... both in exchange for
> nothing' (gratis permission) don't fall under 'first sale'?

Sure, I don't believe that 'first sale' is the only aspect of the 
exhaustion doctrine.  There is more to it than just sales.  I told you 
that Article 4(2) is just the tip of 50 years of case law on the topic 
of exhaustion.  

But so what?  You are not addressing the real issues.  

E.g. that the copyright holder's right to control the making of copies - 
his reproduction right - is not subject to the exhaustion doctrine 
anyway.  That's true whether or not you call it 'first sale', and 
whether or not it is triggered by a gift.  It just doesn't apply to the 
*making* of copies.

So yes, certainly the copyright holder can say "you can make as many 
copies as you like".  But he can also make that subject to conditions - 
as a copyleft licence does.  

Since he does that under his right to control reproduction, and since 
that reproduction right is not subject to the exhaustion doctrine, the 
copyleft licence conditions continue to be effective.

And the CJEU decision only permits a replacement copy to permit the 
software to be used.  It doesn't permit any further copies to be made.  
It doesn't exhaust anything.

Tim Jackson
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