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

From: Alexander Terekhov
Subject: Re: [upcoming] The European Court of Justice on 'Software' First Sale
Date: Thu, 11 Oct 2012 14:00:40 +0200

Ineiev wrote:
> On 10/11/2012 02:58 PM, Alexander Terekhov wrote:
> > Ineiev wrote:
> >> On 10/10/2012 10:01 AM, Alexander Terekhov wrote:
> >>> If so be advised that the GPL doesn't fulfil Russian requirements for IP
> >>> licenses in general...
> >> Why?
> >
> > Read the entire chapter 69 (Part 4***) of Russian Civil Code.
> >
> > Read especially carefully articles such as 1235 ("License Contract")...
> >
> > Finally, study twice article 160.
> Could you be more specific? what requirements are not fulfilled

Signed written form to begin with.

> and what does it imply?

Can't be enforced against licensee.

> >
> > [... "it is copying" ...]
> >
> > For the upteenth time: the act of copying is perfectly fine and
> > unrestricted under the GPL and other public licenses.
> >
> > What is so hard to understand here?
> It is hard to understand how article 1272 may be relevant when
> you download GCC. what you get is a copy you've made yourself,
> it wasn't sold or alienated by the copyright holder. I can't


See for example:

"SmartDownload is available from Netscape’s web site free of charge. 
Before downloading the software, the user need not view any license 
agreement terms or even any reference to a license agreement, and 
need not do anything to manifest assent to such a license agreement 
ther than actually taking possession of the product. From the 
user’s vantage point, SmartDownload could be analogized to a free 
neighborhood newspaper, readily obtained from a sidewalk box or 
supermarket counter without any exchange with a seller or vender. 
It is there for the taking."

See also:

"There is no dispute that section 109 applies to works in digital
form. Physical copies of works in a digital format, such as CDs or
DVDs, are subject to section 109 in the same way as physical copies
in analog form. Similarly, a lawfully made tangible copy of a
digitally downloaded work, such as a work downloaded to a floppy
disk, Zip disk, or CD-RW, is clearly subject to section 109."


"First, as conceded by Time Warner, digital transmissions can 
result in the fixation of a tangible copy.1 By intentionally 
engaging in digital transmissions with the awareness that a 
tangible copy is made on the recipient’s computer, copyright 
owners are indeed transferring ownership of a copy of the work 
to lawful recipients. Second, the position advanced by Time 
Warner and the Copyright Industry Organizations is premised
on a formalistic reading of a particular codification of the 
first sale doctrine. When technological change renders the 
literal meaning of a statutory provision ambiguous, that
provision “must be construed in light of its basic purpose” 
and “should not be so narrowly construed as to permit evasion 
because of changing habits due to new inventions and 
discoveries.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 
151, 156-158 (1975).

The basic purpose of the first sale doctrine is to facilitate 
the continued flow of property throughout society. The common 
law doctrine pre-dates even the 1909 Copyright Act, and 
judicial analysis has consistently focused on the scope of the 
property interest that has been transferred, not the nature of 
the land or chattel that is the object of that property 

1 Time Warner notes: “The initial downloading of a copy, from 
an authorized source to a purchaser’s computer, can result in 
lawful ownership of a copy stored in a tangible medium. If the 
purchaser does not make and retain a second copy, further 
transfer of that copy on such medium would fall within the 
scope of the first sale doctrine.” Time Warner Comments at 3.

2 See, e.g., Henry Bill Publishing Co. v. Smythe, 27 F. 914, 
925 (S.D. Ohio 1886) (“The owner of the copyright may not be 
able to transfer the entire property in one of his copies, and
 retain for himself an incidental power to authorize a sale of 
that copy...and yet he may be entirely able, so long as he 
retains the ownership of a particular copy for himself, to 
find abundant protection under the copyright statute for his
then incidental power of controlling its sale.... A genuine 
copy...carries with it the ordinary incidents of alienation 
belonging alike to all property.”); Step-Saver Data Systems, 
Inc. v. Wyse Technology and The Software Link, Inc., 939 F. 
2d 91 (3d Cir. 1991) (applying a functional analysis to 
determine the scope of the property interest transferred and 
invalidating a box-top software license on grounds that it was 
properly considered proposed—but rejected—contract terms.)"

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