Re: US court says software is owned, not licensed

[amicus_curious]

"Hyman Rosen"  wrote in message 
news:x8abm.142618$y83.11...@newsfe21.iad...

Rjack wrote:

How does an "over-the-air broadcast television program" relate
to an "over-the-internet computer program" licensed under a FOSS license?


Both of them are legally copied in a way which restricts
further distribution of the copies.


You seem to constantly miss the point of the decision by the District Court. 
AutoCAD, too, tried to restrict the distribution of the copy.  The copy was 
purchased legally, presumably, since it had all the documentation with it 
just as a copy of a GPL work might be obtained legally simply by downloading 
from some source.  The GPL makes no limitation to how the program may be 
used.  The GPL does try to restrict how the possessor of the copy passes it 
to another in that it requires a copy of the source to accompany the 
transfer or at least a way for the receiver to obtain a copy of the source. 
That is more liberal than prohibition as tried by AutoCAD, but it is a 
limiting condition nonetheless.  The decision in court was that those 
prohibitions do not apply due to doctrine of first sale.  They don't apply 
to the AutoCAD license and they don't apply to the GPL license.  They don't 
apply to Microsoft's licenses either.  Until, of course the 9th Circuit sees 
fit to say no to the idea.


Are over the air copies of a work restricted in some way from being given to 
another? 


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Re: US court says software is owned, not licensed

[amicus_curious]

"David Kastrup"  wrote in message 
news:87k4yzgwfx@lola.goethe.zz...

"amicus_curious"  writes:


"David Kastrup"  wrote in message


Uh yes.  We were talking about _market_ value of GPL software
business.  Now you want to exclude everything for which one has to
pay.  How much more stupid can you get?


Well I find it difficult to achieve your level, of course, but I would
claim that, absent Linux per se, Red Hat could be in the same business
doing the same things and be focused on freeBSD Unix.


Focus, please focus.  Now you are talking about a decrease of the GPL
market in a fantasy world of yours.


Or the GPL could be revoked and Red Hat would continue to be in the
same business doing the same thing as before.


Nobody was talking about the GPL market in fantasy worlds.

Microsoft could be a company selling green cheese, but that makes no
statement about the dairy market in _this_ world.

Well, if that sort of nonsense is all you have left to mention, it is a good 
sign that you now understand the conventional meaning of market value and 
see that open source software is a very minor player on that stage and 
understand the insignificance of the GPL in terms of market power.  I think 
my work is finished here and I can move off to newer threads. 


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Re: US court says software is owned, not licensed

[Hyman Rosen]

Rjack wrote:

How does an "over-the-air broadcast television program" relate
to an "over-the-internet computer program" licensed under a FOSS license?


Both of them are legally copied in a way which restricts
further distribution of the copies.
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Re: US court says software is owned, not licensed

[Rjack]

Hyman Rosen wrote:

Alexander Terekhov wrote:

Hyman Rosen wrote:

Alexander Terekhov wrote:

lawfully made tangible copy

The copies made for personal use, under the GPL's ...

*Run* to doctor, Hyman.


As an illustrative example, imagine that you videotape an 
over-the-air broadcast television program. Do you believe that 
first-sale allows you to sell the videotape? Do you further believe

 that you may set up a battery of VCRs to record the show multiple
 times and sell those tapes?


How does an "over-the-air broadcast television program" relate
to an "over-the-internet computer program" licensed under a FOSS license?

Before your silly "over-the-air broadcast television program"
rhetorical question even makes sense, you must stipulate what
license, if any, is applicable to the hypothetical
"over-the-air broadcast television program".

Sincerely,
Rjack
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Re: US court says software is owned, not licensed

[Alexander Terekhov]

[... PJ's comedy at www.groklaw.net/article.php?story=2009101015236
... ]

"Chattels and software - a thought exercise 

Authored by: swmcd on Tuesday, October 13 2009 @ 02:55 PM EDT 

I'm completely lost. 

"First sale works great with books. You can't run off a million copies
of a book in ten minutes and distribute over the Internet."

You can scan it and post it, which has substantially the same effect. 

"Software isn't a book. [...] And to do its thing, you need a use
license. "

No, you need 17 U.S.C. § 117 

"it is not an infringement for the owner of a copy of a computer program
to make [...] another copy [...] provided: (1) that such a new copy
[...] is created as an essential step in the utilization of the computer
program in conjunction with a machine "

P.J. says 

"Vendors will never sell you software if you get to resell it without
the license. And with first sale, the license dies as to that copy. And
that copy can be duplicated a million times in minutes and distributed
over the Internet. "

Well, not legally, it can't. You need permission of the copyright holder
do that. "



regards,
alexander.

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NYC LOCAL: Wednesday 14 October 2009 NYLUG: Tobias Abdon and Matt Tavis on Cloud Computing with Amazon Web Services

[secretary]

 From: NYLUG Announcements 
 To: NYLUG Announcements 
 Date: Tue, 13 Oct 2009 09:30:01 -0400 (EDT)
 Subject: [nylug-announce] TOMORROW! NYLUG 10/14 Meeting: Tobias Abdon & Matt 
Tavis on Cloud Computing with Amazon Web Services
 Reply-To: Announcements from NYLUG 

 REMINDER: This meeting is tomorrow, RSVP closes TOMORROW
 Visit http://rsvp.nylug.org to see if RSVP is still open.

 Wednesday, October 14, 2009
 6:30pm-8:00 PM
 IBM
 590 Madison Ave, 12th Floor
 corner of 57th Street

 ** RSVP Closes at 4:30pm the day of the meeting (sharp!) ***
 Please RSVP for EVERY meeting at this time.
 Register at http://rsvp.nylug.org/
 Check in with photo ID at the lobby for badge.

   
   Tobias Abdon & Matt Tavis
- on  -
   Cloud Computing with Amazon Web Services

 Everyone's talking about "The Cloud", but what exactly is it?  Please join
 us Wednesday, October 14th 2009 at 6pm for a discussion about Cloud
 Computing with Amazon Web Services.

 Since early 2006, Amazon Web Services (AWS) has provided users of all
 sizes with an infrastructure web services platform in the cloud.  With AWS
 you can requisition compute power, storage, and other services-gaining
 access to a suite of elastic IT infrastructure services on demand.
 With AWS you have the flexibility to choose whichever development platform
 or programming model makes the most sense for the problems you're trying
 to solve.

 The first half of the presentation will start with an overview of AWS,
 exploring each individual service.  Then the services will be pieced
 together to show how they work together with open source projects.
 After that the focus will shift to several open source projects that run
 on the cloud, including Linux and Hadoop.

 The second half of the presentation will be a hands on demonstration of
 deploying a custom Linux server on the Elastic Compute Cloud (EC2)
 service.  A simple web application will be installed on the server, which
 will then be configured to auto-scale.  To cap off the demonstration, a
 cloud based load generation tool will be used to trigger the auto-scaling
 configuration.

 More Information:
   * Amazon Web Services
 http://aws.amazon.com/

   * What is it?
 http://aws.amazon.com/what-is-aws/

   * Security
 http://aws.amazon.com/security/

   * Operating Systems
 http://aws.amazon.com/ec2/#os

   * Support Providers
 http://aws.amazon.com/solutions/global-solution-providers/

 About Tobias Abdon:
   Tobias Abdon has a background in IT infrastructure implementation and
   management.  In that role his primary focus was on deploying high speed
   data networks for enterprises in the US and Canada.  He has moved away
   from being hands on inside the datacenter, to consulting clients on how
   to best leverage infrastructure based cloud computing services with
   Amazon.

 About Matt Tavis:
   Matt Tavis is the senior technical manager for Amazon ECS web service
   and Amazon Associates. 

 Meeting Location:
   Please note that this meeting will be held at IBM, 590 Madison Ave,
   12th floor, corner of 57th Street, and not at Google.  This is
   the building with the IBM logo on the front of the building.

 Map:
   http://nylug.org/mapofibm

 Books!!!
   Our friends at Prentice-Hall kindly provide us with review copies
   of various new titles.  One of these could be yours, all you have
   to do is agree to review the book within a reasonable period of
   time.

 Swag (Give Away):
   During/after the meeting... unusually terrific swag may be given
   away.

 Stammtisch:
   After the meeting ... You may wish to join up with other NYLUGgers
   over at TGI Fridays located at 677 Lexington Avenue and 56th
   Street, second floor. Northeast corner.

 Python Workshops/Hacking Society:
   We are a group that wants to learn about Python and other things,
   and hack on code.  Sometimes we go out to eat afterward.

   The workshops meet every other Tuesday, at the NY Public Library,
   Hudson Park Branch.  66 Leroy St. NY NY from 6:00 PM - 8:00 PM
   Next meeting is October 13, expected to be followed by October 27.
   See the calendar at: http://nylug.org/pythoncalendar

 Please see our home page at http://www.nylug.org for the HTMLized
 version of this announcement, our archives, and a lot of other good
 stuff.
 __
 Hire expert Linux talent by posting jobs here :: http://jobs.nylug.org
 nylug-announce mailing list nylug-annou...@nylug.org
 http://nylug.org/mailman/listinfo/nylug-announce
  



Distributed poC TINC:

Jay Sulzberger 
Corresponding Secretary LXNY
LXNY is New York's Free Computing Organization.
http://www.lxny.org
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Re: US court says software is owned, not licensed

[Tim Smith]

In article ,
 Hyman Rosen  wrote:

> Alexander Terekhov wrote:
> > Hyman Rosen wrote:
> >> Alexander Terekhov wrote:
> >>> lawfully made tangible copy
> >> The copies made for personal use, under the GPL's ...
> > *Run* to doctor, Hyman.
> 
> As an illustrative example, imagine that you videotape an
> over-the-air broadcast television program. Do you believe
> that first-sale allows you to sell the videotape? Do you
> further believe that you may set up a battery of VCRs to
> record the show multiple times and sell those tapes?

My copyright class in law school was taught using the Socratic method, 
and when it was my day to be grilled by the professor, that is the very 
question he chose to torture me with. Thanks for bringing up that 
horrible memory! :-)

-- 
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Re: US court says software is owned, not licensed

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> As an illustrative example, imagine that you videotape an
> over-the-air broadcast television program. Do you believe
> that first-sale allows you to sell the videotape? Do you

I believe that transfer of a fair use copy is subject to fair use
analysis just like the act of making that particular fair use copy
itself.

regards,
alexander.

--
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LMAO! "So which do you want most, first sale or the GPL?"

[Alexander Terekhov]

LOL. Unbelievable!!!

http://www.groklaw.net/comment.php?mode=display&sid=2009101015236&title=GPL%20%3D%2F%3D%20EULA%21%21%21%21%21&type=article&order=DESC&hideanonymous=0&pid=793329#c793360

"Authored by: PJ on Tuesday, October 13 2009 @ 01:39 PM EDT 

You are missing the point. It doesn't matter if
the GPL isn't a EULA. What matters is that it is
a license. If you own your copy, then you don't have
a license any more. Your first sale right depends
on the transaction being a sale, not a licensed use.

Once it is a sale, you have your copy and first sale
rights, but to get that you have to give up the
license.

One or the other. So which do you want most, first
sale or the GPL?"

regards,
alexander.

--
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Re: US court says software is owned, not licensed

[Hyman Rosen]

Alexander Terekhov wrote:

Hyman Rosen wrote:

Alexander Terekhov wrote:

lawfully made tangible copy

The copies made for personal use, under the GPL's ...

*Run* to doctor, Hyman.


As an illustrative example, imagine that you videotape an
over-the-air broadcast television program. Do you believe
that first-sale allows you to sell the videotape? Do you
further believe that you may set up a battery of VCRs to
record the show multiple times and sell those tapes?
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Re: US court says software is owned, not licensed

[Alexander Terekhov]

Alexander Terekhov wrote:

[... http://www.groklaw.net/article.php?story=2009101015236 ...]

> Well, at least her own pseudo-paralegal conclusions are quite a
> contribution on the recreational front! ;-)

The latest ones... priceless!

"Authored by: PJ on Tuesday, October 13 2009 @ 01:35 PM EDT 

Not so. Think it through again. "

"Authored by: PJ on Tuesday, October 13 2009 @ 01:44 PM EDT 

GPL is about freedom, son.

First sale is about being able to sell old stuff.

Puh lease. "

LMAO!

regards,
alexander.

--
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Re: US court says software is owned, not licensed

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> Alexander Terekhov wrote:
> > lawfully made tangible copy
> 
> The copies made for personal use, under the GPL's ...

*Run* to doctor, Hyman.

regards,
alexander.

--
http://gng.z505.com/index.htm 
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Re: US court says software is owned, not licensed

[Hyman Rosen]

Alexander Terekhov wrote:

lawfully made tangible copy


The copies made for personal use, under the GPL's
 "You may
make, run and propagate covered works that you do
not convey" provision aren't the lawfully made
tangible copies you're looking for.
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Re: US court says software is owned, not licensed

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> rights of the copyright holder. Creating the copies allowed
> by the first does not give you permission to distribute them.

Facts:

(1)

http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf

"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."

(2)

http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Section_109

(House Report No. 94-1476 (Extract))

"To come within the scope of section 109(a), a copy or phonorecord 
must have been "lawfully made under this title," though not 
necessarily with the copyright owner's authorization. For example, 
any resale of an illegally "pirated" phonorecord would be an 
infringement, but the disposition of a phonorecord legally made 
under the compulsory licensing provisions of section 115 would not."

regards,
alexander.

--
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P.S. Go to doctor, Hyman.
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Re: US court says software is owned, not licensed

[Hyman Rosen]

Alexander Terekhov wrote:

Well, at least her own pseudo-paralegal conclusions are quite a
contribution on the recreational front! ;-)


I don't know why she seems to have gone off the deep end
over this; she seems to have forgotten that first sale
does not affect the rights of the copyright holder.

Your usual contention that copies of GPLed works you obtain
by downloading can then be sold without complying with the
GPL continues to be wrong, of course. 17 USC 106 separates
two rights of the copyright holder:

(1) to reproduce the copyrighted work in copies or
phonorecords;
...
(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
The GPL grants you different permissions for these two
rights of the copyright holder. Creating the copies allowed
by the first does not give you permission to distribute them.
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Re: US court says software is owned, not licensed

[Alexander Terekhov]

Tim Smith wrote:
[...]
> Groklaw seems to agree with you. PJ says the Autodesk ruling is "poison
> for FOSS" and hopes it is overturned.
> 
> 

Yeah, yeah.

Well, at least her own pseudo-paralegal conclusions are quite a
contribution on the recreational front! ;-)

"Authored by: PJ on Monday, October 12 2009 @ 07:56 PM EDT 

Once the license is first saled away, then
what stops you from putting a new license on
it? Say, a Microsoft license? From that
point onward, you can get rid of the second
license by first sale, etc., rinse and
repeat.

See why I think the Autodesk decision is 
wrongly decided?"

"Authored by: PJ on Monday, October 12 2009 @ 07:58 PM EDT 

He said it was a sale, not a license, because
there was no requirement to give back the old
CDs when you were done.

So the license goes poof. "

"Authored by: PJ on Tuesday, October 13 2009 @ 12:40 AM EDT 

You are missing the legal dance being proposed.
If first sale trumps the license, there is no
GPL any more, and so the GPL doesn't say
anything or require anything. It's over. "

Ha ha.

regards,
alexander.

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Re: US court says software is owned, not licensed

[David Kastrup]

"amicus_curious"  writes:

> "David Kastrup"  wrote in message
>
>> Uh yes.  We were talking about _market_ value of GPL software
>> business.  Now you want to exclude everything for which one has to
>> pay.  How much more stupid can you get?
>>
> Well I find it difficult to achieve your level, of course, but I would
> claim that, absent Linux per se, Red Hat could be in the same business
> doing the same things and be focused on freeBSD Unix.

Focus, please focus.  Now you are talking about a decrease of the GPL
market in a fantasy world of yours.

> Or the GPL could be revoked and Red Hat would continue to be in the
> same business doing the same thing as before.

Nobody was talking about the GPL market in fantasy worlds.

Microsoft could be a company selling green cheese, but that makes no
statement about the dairy market in _this_ world.

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Re: US court says software is owned, not licensed

[amicus_curious]

"David Kastrup"  wrote in message 
news:87skdniz1r@lola.goethe.zz...

"amicus_curious"  writes:


"David Kastrup"  wrote in message
news:87pr8s4t7b@lola.goethe.zz...

Rjack  writes:


David Kastrup wrote:


He made the rather audacious and totally unsupported statement
that the "GPL software market is worth billions by now" and he
ducks and runs from the challenge that his notion is simply
false.


Huh?  There was no challenge.  If there had been, it would have
been easy to counter.  RedHat's market capitalization is
5.29billion at the moment, their main product is RedHat Linux and
an estimated 80% (including the kernel) of any Linux distribution
is under the GPL.


Using the market cap of a producer to suggest the value to the market
is kind of a reach.


Hm?  It is the amount of money the investors find worth keeping in a
company.  If a single company focused on GPL products already has more
than 5 billions, it is certainly not unsubstantiated to talk about a
market worth billions.  Unless you are in complete denial mode.

Well, you seem to have a unique view of market value which most everyone 
else agees to be the amount of money spent by consumers to obtain products 
that comprise the market.  I suppose that, if you need to find some way to 
justify your original comment, you could use that analysis to save face, but 
you would be exposing an alternate shortness of knowledge.  Which is better 
for you?  Your view is analogous to claiming that the title of biggest crap 
game in town goes to the table with the largest bank rather than to the one 
with the most money wagered.  It is a wrong view.



Using the same logic, the market value of Windows and Windows software
is some 240 billion by contrast.


I haven't looked.  So what?  That was not under debate.  Is there a
particular reason you feel like changing the topic whenever you have
been proven wrong?

I have not been proven wrong at all.  You have merely proven your lack of 
understanding of the meaning of market value.  Even so, since you offer the 
market cap of Red Hat as substantiation of the "market value of GPL 
software" so to speak, you have to agree that the reason for the assertion 
in the first place was to claim that the GPL was of substance.  Changing the 
metric for Red Hat, though, changes it for all non-GPL software as well and 
the GPL measure is still trivial and inconsequential relative to the measure 
of the non-GPL software.  So your assertion remains unproven.



No other company dealing with open source software as a defining
charactersitic even comes close to Red Hat,


Last time I looked, Sun defined itself as an open source company, and it
is slated to become part of Oracle.  Both not exactly small companies.

That is indeed humorous!  Sun, having made an effort to re-invent itself, at 
least in image, and failed is now offered as an "open source" company?  I 
suppose that its attempt to proprietize MySQL will be branded as its 
becoming a "company centered on GPL software" as well.  Then the offer by 
Oracle to purchase Sun makes Oracle a similar company?  No wonder Steve 
Ballmer suggested that GPL was a "cancer"!  You have shown that he is right.



so one could safely say that the combined market caps of proprietay
software companies focused on Windows, which would necessarily include
hunks of Oracle, Symantec, IBM, Intuit, and others, is a couple of
orders of magnitude greater than the GPL can muster, making it a
rather small potato.


Cough, cough.  Hunks of Oracle, IBM and others are focused on Open
Source (IBM has invested a few billions into Open Source by now
according to their own statements, so IBM alone would also likely
support my statement).  Is there a particular reason you only want to
count a single company for the GPL tally (and dismiss that this single
company would already suffice for my statement), yet list a number of
companies (who tend to also invest in the GPL market) on the side of
Windows, even though a comparison was never the topic?

A minute amount of IBM's business deals with open source software and in 
reality nothing about its business that differentiates it from its 
competition relies on open source.  Further, the discussion was not about 
"open source" but rather about the GPL.  Do you find the GPL hard to defend? 
BTW, I looked up TeX and such and it appears, among other things, to not be 
a GPL licensed software product.  Why not?



Get a grip.  Try to remember what you tried accusing me of and try
arguing a bit more coherently.  You don't look particularly well if you
both lose sight of your argument _and_ employ conflicting standards
while arguing something else altogether.

My grip is fine.  It is yours that has slipped.  You are the one who seems 
confused as to how market value is calculated.  Do you not believe in the 
standard definitions?  You are also the one who seems confused by OSS vs 
FOSS and the GPL vs other sorts of open source licenses.  I know that you 
a

Re: US court says software is owned, not licensed

[amicus_curious]

"David Kastrup"  wrote in message 
news:87skdniz1r@lola.goethe.zz...

"amicus_curious"  writes:


"David Kastrup"  wrote in message
news:87pr8s4t7b@lola.goethe.zz...

Rjack  writes:


David Kastrup wrote:


He made the rather audacious and totally unsupported statement
that the "GPL software market is worth billions by now" and he
ducks and runs from the challenge that his notion is simply
false.


Huh?  There was no challenge.  If there had been, it would have
been easy to counter.  RedHat's market capitalization is
5.29billion at the moment, their main product is RedHat Linux and
an estimated 80% (including the kernel) of any Linux distribution
is under the GPL.


Using the market cap of a producer to suggest the value to the market
is kind of a reach.


Hm?  It is the amount of money the investors find worth keeping in a
company.  If a single company focused on GPL products already has more
than 5 billions, it is certainly not unsubstantiated to talk about a
market worth billions.  Unless you are in complete denial mode.


Using the same logic, the market value of Windows and Windows software
is some 240 billion by contrast.


I haven't looked.  So what?  That was not under debate.  Is there a
particular reason you feel like changing the topic whenever you have
been proven wrong?


No other company dealing with open source software as a defining
charactersitic even comes close to Red Hat,


Last time I looked, Sun defined itself as an open source company, and it
is slated to become part of Oracle.  Both not exactly small companies.


so one could safely say that the combined market caps of proprietay
software companies focused on Windows, which would necessarily include
hunks of Oracle, Symantec, IBM, Intuit, and others, is a couple of
orders of magnitude greater than the GPL can muster, making it a
rather small potato.


Cough, cough.  Hunks of Oracle, IBM and others are focused on Open
Source (IBM has invested a few billions into Open Source by now
according to their own statements, so IBM alone would also likely
support my statement).  Is there a particular reason you only want to
count a single company for the GPL tally (and dismiss that this single
company would already suffice for my statement), yet list a number of
companies (who tend to also invest in the GPL market) on the side of
Windows, even though a comparison was never the topic?

Get a grip.  Try to remember what you tried accusing me of and try
arguing a bit more coherently.  You don't look particularly well if you
both lose sight of your argument _and_ employ conflicting standards
while arguing something else altogether.


The statement concerned the "GPL software" market (i.e. proprietary
vs. non-proprietary) software. It is a category mistake to conflate
"software" market with "software services" market.


Huh?  Since when?  It would appear you are redefining "software
market" as "licensing fee collection market" in order to carry your
argument.  But that's just stupid.  Licensing fee collection is not
even part of a software engineer's job description.



But it is a very significant part of the value of software being sold
in commerce.


Not with GPL software.  And so it is simply disingenuous to define
"market" as something excluding the GPL market.  It is like saying that
the majority of beverages is carbonated, and then measuring the beverage
market in terms of carbon dioxide.  Of course you'll arrive at the
conclusion that there is no significant market value for orange juice.


As noted, the source of Red Hat's profits are the support activities
which are dependent on the existence of the GPL software in Linux, but
are distinctly separate and not particularly open at that.  You have
to pay to play with Red Hat.


Uh yes.  We were talking about _market_ value of GPL software business.
Now you want to exclude everything for which one has to pay.  How much
more stupid can you get?

--
David Kastrup 


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Re: Psystar/Apple/First sale on Groklaw

[Rjack]

David Kastrup wrote:

http://www.groklaw.net/article.php?story=2009101015236>


Most "licenses" try abolishing the meaning of first sale 
altogether, and I find that more of a nuisance for the customer 
than the effects of the purported loophole appears to be in 
practice.


Let's analyze first sale and its effect on open source internet
"distribution".

Definitions 17 USC sec.101 -- "Copies" are material objects, other
than phonorecords, in which a work is fixed by any method now known or
later developed, and from which the work can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a
machine or device. The term “copies” includes the material object,
other than a phonorecord, in which the work is first fixed.

Exclusive Rights 17 USC sec. 106(3) -- to distribute copies or
phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending;

The obvious meaning of the above copyright sections is that the
exclusive distribution right applies to "PHYSICAL COPIES" that
comprises the material object in which the work is first fixed.

Now, let's say Alexander goes to a server offering GPL'd software at
some internet site and legally downloads a copy of gcc that is fixed
in a plastic CD on Alexander's computer. Who owns the copy fixed on
the physical medium that is the CD? Alexander owned the plastic CD
before he downloaded the copy. Do the GPL code authors own the plastic
CD after the copy is burned? Absolutely not! Alexander still own that
CD! You bet. Does he have the right to dispose of that copy by sale?
You bet:

17 USC sec. 109 -- (a) Notwithstanding the provisions of section
106(3), the owner of a particular copy or phonorecord lawfully made
under this title, or any person authorized by such owner, is entitled,
without the authority of the copyright owner, to sell or otherwise
dispose of the possession of that copy or phonorecord...

(b)(1)(A) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording or the
owner of copyright in a computer program (including any tape, disk, or
other medium embodying such program), and in the case of a sound
recording in the musical works embodied therein, neither the owner of
a particular phonorecord nor any person in possession of a particular
copy of a computer program (including any tape, disk, or other medium
embodying such program), may, for the purposes of direct or indirect
commercial advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including any
tape, disk, or other medium embodying such program) by rental, lease,
or lending, or by any other act or practice in the nature of rental,
lease, or lending.

Here's the point. If you are an owner of a computer program copyright,
and license someone else to make a copy of your work on a physical
medium that is owned by the licensee then "Notwithstanding the
provisions of section 106(3)" gives the licensee (the lawful owner) of
that copy of a computer program the right to dispose of that copy as
long is it a transfer of ownership but not by rental, lease, or lending.

It's the PHYSICAL MEDIUM and not the MESSENGER that counts!


Sincerely,
Rjack



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Re: Psystar/Apple/First sale on Groklaw

[Hyman Rosen]

Alexander Terekhov wrote:

To GNUtian Hyman Rosen: see comments below regarding the Blizzard case
that you've liked so much...


I would be thrilled if the Blizzard case were overturned.
I am very much in favor of people being able to reverse-
engineer protocols and do things that are unanticipated
by service providers, and to have those service providers
not be able to use the law to stop them. Overturning this
case will not adversely affect use of the GPL.

I myself have in this newsgroup proposed the scheme that
so worries Groklaw, having one party sell GPLed binaries
plus source to a second party, which then resells only
the binaries. I like it in the same spirit as the above -
reverse-engineering a protocol, this time that of the law,
to accomplish something against the will of the providers.

I also find it very unlikely that the scheme will be used
very much, if at all. Most GPL violations are by companies
who can't be bothered to comply, not ones who deliberately
don't want to comply.
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Re: Psystar/Apple/First sale on Groklaw

[Alexander Terekhov]

David Kastrup wrote:
> 
> http://www.groklaw.net/article.php?story=2009101015236>
> 
> Just for the record: I quite disagree with Pamela Jones on her
> assessment of the situation.  She basically thinks that "first sale"

For a change, you are in good company, dak. ;-)

To GNUtian Hyman Rosen: see comments below regarding the Blizzard case
that you've liked so much...

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

"The Copy Ownership Cases

Posted August 31st, 2009 by Brian and filed in Contract, Copyright
Limitations and Exceptions 

Cases and Courts:

 - UMG Recordings, Inc. v. Augusto (C.D. Cal.), appealed to (9th Cir.).

 - MDY Indus. LLC v. Blizzard Entm’t, Inc. (D. Ariz.), appealed to (9th
Cir.).

 - Vernor v. Autodesk, Inc. (W.D. Wash.).

Background

The so-called “license versus sale” distinction that arises with respect
to copies of software or music will confront the Ninth Circuit in three
upcoming cases. In UMG Recordings, Inc. v. Augusto,1 the district court
found that, notwithstanding “not for resale” labels, the initial
recipients of “promo CDs” owned them and were thus entitled to sell the
CDs to others.

In MDY Indus. LLC v. Blizzard Entm’t, Inc.,2 the district court held
that purchasers of Blizzard’s World of Warcraft software are not owners
of their copies of the software, and hence are not entitled to a Section
117 defense that would allow the owner of a copy of a computer program
to make a copy of the program, provided such copy is created as an
essential step in the utilization of the program.

Finally, in Vernor v. Autodesk, Inc.,3 the district court found that the
transfer of Autodesk’s AutoCAD software to a third-party was a sale, and
that Vernor, having acquired AutoCAD from the third-party, could invoke
the first sale doctrine in order to resell his copies of AutoCAD on eBay
without liability for direct or indirect copyright infringement.

These cases present the Ninth Circuit with multiple opportunities to
revisit its decisions in the license versus sale context. The Vernor
court wrote that these precedents are in irreconcilable conflict, which
it could only resolve by following the earliest precedent.

What’s at Stake?

In a forthcoming article that I presented at the Ninth Annual IP
Scholars Conference, I argue that that the Augusto and Vernor courts
reached the correct outcomes and that the Blizzard court erred. The
Augusto and Vernor decisions, through a faithful adherence to precedent,
also represent an interpretive breakthrough in an area of law fraught
with misguided approaches. By recognizing what is right in these
decisions and what has gone so wrong in other cases, we can see not only
how to reach the correct result in Blizzard, but how best to resolve the
recurring question of when title to a copy passes to a transferee,
giving rise to first sale and § 117 rights. Those rights are an
essential part of the balance Congress struck between the users of
copyrighted works and copyright owners.

Copy Ownership

It is critical to understand that the question before these courts has
nothing to do with ownership of the underlying copyrights. Rather, the
issue is whether Augusto, Vernor, or retail purchasers of World of
Warcraft are “owners of” or “have title to” the physical DVD-Roms and/or
CDs that they rightfully possess. Yes, we are talking about the
ownership of shiny circles of plastic.

If you are shocked to learn that it takes a federal court to sort out
who owns a copy of a DVD, you should be more shocked to learn that
federal courts typically cannot figure it out either. In my extensive
review of these cases, I have come across between four and six different
approaches to the question (depending on how you count) taken by various
courts. Shouldn’t there be a single straight-forward way to answer the
question of who owns a tangible thing like a CD?

I argue that the correct approach to determining copy ownership: 

1.must be logically correct;
2.must respect precedent;
3.must respect congressional choices; and
4.would hopefully make sense.

That is, courts must not equivocate with respect to the word “license,”
must recognize the possibility of ownership of a copy independent from
ownership of the copyright, must respect Supreme Court precedent, and
should seek to harmonize Circuit Court precedents. Courts should also
heed the warning of the Supreme Court’s recent Quanta Computer4
decision, must recognize the limiting role played by §§ 107-122 and
examine whether contrary contractual provisions are federally preempted,
and should preserve as far as possible the national uniformity copyright
law seeks.

Well-reasoned Opinions to the Rescue

To make a long story short, the Augusto and Vernor opinions were breaths
of fresh air in an area of law that had succumbed to a stench of
inconsistent and illogical opinions. They achieved this breakthrough by
relying on, and carefully understanding, the two key precedents on copy
ownership in the Ninth Circuit: 

Psystar/Apple/First sale on Groklaw

[David Kastrup]

http://www.groklaw.net/article.php?story=2009101015236>

Just for the record: I quite disagree with Pamela Jones on her
assessment of the situation.  She basically thinks that "first sale"
should only be claimed by some fuzzy notion of "end user" or not at all,
and that any different interpretation would be devastating to Open
Source and the GPL in particular.

In my opinion, first sale is really rather fundamental to making the
world act somewhat sanely and predictably for a customer (and most
"licenses" try undermining it).  As mentioned before on this group,
first sale may be regarded as a potential base for a loophole in GPL
licensing (and other cases), but it is not apparently an important
loophole.

The biggest loophole obviously would be if software copyright were
abolished altogether, and the results would be worth the size of the
loophole.

So I am quite more relaxed than Pamela Jones about the effects, since
weakening the GPL in this aspect together with other licensing schemes
does not shift the balance much for the customer.

Most "licenses" try abolishing the meaning of first sale altogether, and
I find that more of a nuisance for the customer than the effects of the
purported loophole appears to be in practice.

-- 
David Kastrup
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