FSF takes on Apple's App Store over GPL
Posted Jun 12, 2010 19:44 UTC (Sat) by speaker2animals
In reply to: FSF takes on Apple's App Store over GPL
Parent article: FSF takes on Apple's App Store over GPL
Analogies with big-box retail stores fail because big-box retail stores do not make the copies they distribute. If you were to distribute GNU Shogi through an app store or other online distributor, you would upload one copy to the store or distributor, and then whenever someone wanted a copy the store or distributor would make a copy and distribute that to the downloader.
The app store or online distributor is making copies, which requires permission of the copyright holder, and then distributing those copies, which also requires permission of the copyright holder. Hence, they have to care about the license on that original upload from you.
If, on the other hand, you were to burn 10000 CD-ROMs with copies of GNU Shogi, put them in nice boxes, and sell them to a big-box retail store which in turn sells them to customers, the big-box retail store would not be making copies. They *would* be distributing copies, but those would be copies they bought from you and are reselling. That falls under a thing called the "First Sale Doctrine". In the US it is codified in the Copyright Act at 17 USC 109. The gist of that is:
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.
106 (3) is the section of the Copyright Act that says that you need the copyright owner's permission to distribute copies, so first sale is an exception to the distribution right. In non-legalese, what first sale means is that once a particular copy is legally made, the owner fo that copy can sell it without requiring permission of the copyright owner.
This is why, for example, you can sell used books without having to get permission from the author or publisher.
First sale would apply to boxes of GNU Shogi you sell to Best Buy. They do not need permission to resell, and so it would not matter if they imposed any GPL-incompatibile terms on their customers.
You can see first sale in action with regard to free software by looking at things like consumer routers, TVs, and DVRs that include GPL firmware.
If you buy a Linksys router that uses Linux from Best Buy, Best Buy has no obligation to provide you with source code.
The obligation to provide code falls entirely on Linksys.
"Wait!" I hear people saying, "wasn't Best Buy named in one of the recent Busybox lawsuits for not providing source?" That's right, they were, but that was for hardware that Best Buy was manufacturing. They were making copies and then disributing those copies. First sale does not cover them there because they are making copies, not just passing on copies they receive from an upstream manufacturer.
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