In article <[EMAIL PROTECTED]>, Alexander Terekhov <[EMAIL PROTECTED]> wrote: > http://warmcat.com/_wp/2008/05/23/exhaustion-and-the-gpl/ > > ----- > Exhaustion and the GPL
That reminds me of a question my professor asked us in copyright law class when I was in law school, when we were discussing the Betamax case. I use my VCR to record a movie off of TV so I can watch it later. Fair use, according the the Supreme Court. When I'm done watching, can I sell the recording? The copy was lawfully made. I own the copy. Seems like first sale says I can. What if I set up a bank of 1000 VCRs, to record 1000 copies? Can I sell those? That case is tricker, I think. I'm not making the copies for my personal time shifting now, so maybe that will change the balance in the fair use analysis. If that makes my copies unlawful, then first sale does not apply. In the GPL hypothetical I've discussed before, and that Hyman is now discussing, there isn't necessarily any intention to "circumvent" the GPL. The most likely way it would arise, in my opinion, is simply that company A ships with source because they want to satisfy GPL, and find that a more convenient way than making the source available for three years via a written offer. Company B discards the source simply because they don't find it useful, and it is cheaper and more efficient to not have to bother dropping the CD in the box. (Even if it takes no effort at all to include the CD, it is still going to generate support costs--its presence *will* confuse some customers). Note: this hypothetical applies to pretty much all licenses, not just GPL. But suppose someone actively wanted to circumvent GPL, using first sale? What if they simply took this approach: 1. Acquire a lawful copy of a GPL binary. Doesn't matter how--download it from somewhere, compile it from source, whatever. 2. Make copies of the binary. GPL says this is OK. 3. Sell or give away those copies. They are lawfully made copies, and the person owns those particular copies, so this seems to fall under first sale. Note that this differs from my 1000 VCR hypothetical, because there the copying was not authorized. But GPL authorizes the copying. Oops. Also note: this is not a problem for a free software license that is enforced as a contract. With such a license, they have agreed to distribute source with copies they make, so there will be an action for breach of contract. And if the contract is written right, that will terminate their permission to make copies, and stop them dead in their tracks. It's *only* the GPL that is susceptible to this blatant circumvention, due to its perverse insistence on not being a contract, but merely a bare copyright license only adding to what copyright already allows you to do. (I believe I read somewhere...Larry Rosen's book, perhaps...that many jurisdictions do not recognize bare licenses, and GPL *would* be seen as a contract on those jurisdictions. Maybe that provides a saving throw--if someone tries to blatantly circumvent by making copies and distributing under first sale, you sue them in a jurisdiction that would treat GPL as a contract). -- --Tim Smith _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss